BY PAUL MEZZINA
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On Tuesday, the Federalist Society treated students to a lecture subjecting the Supreme Court’s Establishment Clause jurisprudence to textual and historical criticism, delivered by a self-described “dumb potato farmer from Idaho.”
His modesty notwithstanding, Jeff Ventrella is an accomplished litigator and a senior vice president of the Alliance Defense Fund, an organization founded to “aggressively defend religious liberty.” ADF contributed briefs in support of public displays of the Ten Commandments in two recent Supreme Court cases, McCreary County v. ACLU and Van Orden v. Perry. The Court split on the cases, permitting Texas to keep a Ten Commandments monument on the grounds of its State Capitol but ordering McCreary County, Kentucky to remove Ten Commandments displays from its courthouses. Both decisions were 5 to 4, with Justice Breyer providing what Ventrella called the “bizarro swing vote.”
In his talk, Ventrella sought to demonstrate that the text and context of the Constitution provide support for state-sanctioned public religious expression. He argued that judges interpreting the Establishment Clause should look to the political and cultural setting in which the Constitution was adopted, as evidenced by the four “organic documents” of the founding era: the Declaration of Independence, the Articles of Confederation, the Constitution, and the lesser-known Northwest Ordinance, a 1787 law which governed the admission of new states to the Union.
These documents, he says, demonstrate the founding generation’s acceptance of a strong public role for religion. The Declaration of Independence proclaimed God as the source of civil rights, while the Northwest Ordinance required territories seeking statehood to establish schools for the encouragement of “religion, morality, and knowledge.” The Bill of Rights itself singles out religious expression for special protection in the First Amendment.
Ventrella also pointed to more subtle “structural clues” which confirm the Constitution’s “friendliness to religion.” Article I, Section 7 excepts Sundays from the ten-day period allotted for the President to review bills presented to him by Congress, and Article III’s evidentiary requirements for a conviction of treason are drawn from the Law of Moses.
Ventrella suggested that the constitutional rule prohibiting the “establishment of religion” should be construed in light of the Founders’ acknowledgment of the importance of religion to a free society. At the time the Constitution was adopted, he maintained, most Americans believed that the government had an affirmative duty to support Christianity, which was widely viewed as a foundation of republican liberty. James Madison once argued against passage of a bill because it would interfere with the “diffusion of the light of Christianity.” State support for religious belief was limited, however, by the Founders’ respect for private freedom of conscience.
This historical balance, Ventrella claimed, is not reflected in the “official neutrality” standard employed by Justice Souter in McCreary County. Souter’s analysis, applying the purpose prong of the Court’s test from the 1971 case of Lemon v. Kurtzman, focused on whether the government actions at issue were motivated by a desire to promote religion. Ventrella criticized Souter’s willingness to examine the context and legislative history of a statute, rather than its plain meaning and effects, as not faithful to the Lemon test. He also noted that a requirement of religiously neutral legislative intent could produce absurd results, such as the invalidation of a public highway bill because the legislators who enacted it hoped to facilitate the spreading of the Gospel.
Rather than requiring official neutrality toward religion, Ventrella suggested that the Court apply a “coercion test” to public expressions of religion, striking down only acts of government that force individuals to participate in “rites or rituals” contrary to their beliefs. He maintained that a state which merely articulates the Founders’ assumptions concerning the nature and origins of the rights of citizens does not thereby establish religion.
Ventrella did not reserve his criticism solely for the more liberal Justices. He closed by calling on the Supreme Court to overrule Justice Scalia’s decision in Employment Division v. Smith, which held that individuals have no right to perform religious acts that are proscribed by a facially neutral and generally applicable law. In Ventrella’s view, both liberal and conservative members of the Court could use a refresher on the historically central role of religious expression in American constitutional democracy, and on the importance of widespread religious belief as a vital check on the authority of the state.