Where Are Our Courts Leading Us?

Winter 1990

Reformed Quarterly Volume 9, Issue 4

William Bentley Ball is a noted constitutional lawyer who has been lead counsel in litigations in twenty-two states and in nineteen cases before the Supreme Court of the United States, including the landmark decision in the Amish case Wisconsin v. Yoder. Many of these cases have involved issues of religious freedom. An expert in church/state matters, Ball is also a frequent lecturer on constitutional issues and is the author of various law reviews and other articles. He is on the Board of Directors of the Christian Legal Society and a member of numerous committees on legal issues. In the following interview, Ball analyzes trends in the thinking of the highest courts in our land and discusses the effect of several recent Supreme Court decisions.

Q. What do you feel have been the critical changes in the area of church/state affairs during the last twenty-five years?

A. I think the trend concerning the future of religious liberty is not promising. The situation had been improving in the 1970s as the Supreme Court made it quite clear that state and federal governments could not override religious liberties unless they could prove conclusively that the laws were needed in the name of some supreme societal interest. However, that type of thinking by the Supreme Court has declined, and the Court has come quite close to saying that whatever legislatures decide is the ultimate law and must be obeyed.

Q. It seems that a recent Supreme Court ruling concerning the use of peyote by Indians in Oregon could dramatically affect religious liberty in our country. Could you comment on the ruling?

A. Here the Supreme Court said two things. First, a law does not violate religious liberty unless that law expressly attacks religious practice. That is tantamount to saying that a law might be passed which would prohibit Catholics from receiving Holy Communion, which is nonsense because no legislature would do such a thing. Secondly, they said that religious liberties can be observed if that right is piggy-backed onto some other right. For example, suppose a general law were passed forbidding anyone to attack a pro-abortion law. If a clergyman feels he has the right to speak against the wickedness of the laws because God tells him to do so, he would probably win under the new Supreme Court ruling, but not on the basis of his religious freedom. He would win because his religious freedom is “piggy-backed” on his right to free speech. The court has now sanctified the free speech clause, while at the same time it is denigrating the first freedom in the first amendment, namely the freedom of religion.

Q. What does the First Amendment guarantee by way of religious liberty?

A. The First Amendment says, “Congress shall make no law respecting the free exercise of religion.” Long ago, the Supreme Court said this applies also to the states, even though the word “Congress” is used. Under the Federal Constitution and all state constitutions we have provisions for religious freedom. The traditional view has been that religious freedom is the first right stated in the First Amendment and is equally — if not more — important than the other liberties (speech, right of assembly, etc.) mentioned in the First Amendment. It is a very precious, fundamental liberty which may not be suppressed, injured, exceeded, or restricted by government unless there is what the Supreme Court calls a compelling state interest which the government would have to prove in order to deny that liberty. An example of such would be a religion’s calling for human sacrifice; the common good would dictate that people may not be killed in the name of religion. Until the recent peyote decision, we had felt it was quite clear that the government has to carry a very heavy burden of proof when it seeks to restrict religious freedom.

Q. What are the reasons for this shift in the court’s thinking?

A. I think one could explain it in terms of the general secularizing of our society, and the court reflects that. The deeper reason, in terms of jurisprudence, is a false judicial conservatism. We use the term conservative very, very carelessly today, even in religious circles. A congressman may be a militant fighter against spending, yet he votes for abortion funding. Is he the kind of conservative we want? The real conservative is one who believes there is a transcendent order to the universe. Our judicial conservatives, on the other hand, say the State is the ultimate source of law, the majority’s arm. This, I think, is wrong and opens the door wide to pervasive secularism.

Q. Could you trace broadly over the last quarter century any landmark decisions which you feel have brought us to our current condition?

A. You can see a trend on the subject of education and the rights of parents to give their children a religious education. In the nineteenth century, public schools were considerably religious. Traditional Christian values were preserved to quite an extent but began to decline in the 1920s and 1930s. Citizens began to see the problem and in some schools instituted programs of religious instruction. However, in the 1948 McCollum decision, an atheistic woman attacked the religious instruction program in the schools of Champaign, Illinois, saying her child would be misled and demoralized by the program. The Supreme Court agreed with her, and that was the beginning of the secularization of public schools.

Then in 1962 came the Engel case. There the board of regents had composed a prayer which said, “Almighty God, we acknowledge our dependence on Thee, and we ask Thy help for our family and country” — a very simple twenty-two word prayer to be said on a voluntary basis. The Supreme Court threw it out on the grounds that it was a state-manufactured prayer, carrying the secularization notion further.

Then came the climactic Schemp case in 1963 which involved Bible-reading in the Pennsylvania public schools and the Lord’s prayer in the Maryland schools. The Supreme Court abolished them both but claimed in their opinion that they were not establishing religious secularism. However, that is exactly what they did, and from that point on everything has pointed squarely in the direction of the secularization of public education with devastating effect on the nation.

Q. What is meant by the establishment clause?

A. To the founding fathers it meant, “We don’t want an established church.” The word “establish” is very well-known in English and Continental law. The framers of our Constitution were very conscious of the established Church of England when they drew up the Constitution. Today, the establishment clause means the government may not establish an official state church, the government may not endorse a particular church, and we may not be forced to contribute public funds for the support of a church. But what has happened under Supreme Court decisions is an expansion of the meaning of establishment, under the guidance of groups such as the American Jewish Congress and the American Civil Liberties Union, to mean that we must have a secularized society, and there should not be any accommodation of religion, which is forbidden by the establishment clause.

However, I have argued many times that neither can public funds be used to establish secularism. If you establish secularism, you are establishing religion. The Supreme Court itself decided in 1963 that secular humanism is a religion within the meaning of the establishment clause. They said that Taoism, Buddhism, and Secular Humanism in ethical cultures are religions within the meaning of the First Amendment. They were saying that if I wanted to set up a meeting place to promote secular humanism, nobody could interfere with that; it would be protected by the free exercise of religion. I say if you can’t have Bible reading in the public schools, you can’t have secularism. This is a point no one is willing to acknowledge.

Q. The House version of the recent Americans with Disabilities Act seems to open the door for the government to determine internal church personnel decisions. How do you feel about it?

A. The bill is trying to protect the rights of the disabled in providing access to facilities, but it needs to be redrafted because it is an example of overkill. We need help for many disabled people, but we must civilize that bill so that it will rationally help them. It does indeed have a strong potential of imposing almost impossible financial burdens on churches, for example. The danger in legislation such as this is that it places a great deal of power in the hands of a local enforcement officer with his little list of 300 regulations, and many times there is little room for common sense. If a church says, “No, we cannot put a ramp on that side of the building” or “No, we cannot destroy this building and build a new one to accommodate the disabled, but we do have helpers to assist these people into the church,” they will be told it is against the regulations.

Private clubs are exempt from this law; this is plainly evidence of political jockeying, gerrymandering out an area of exemption that should not be, whereas the liberty of churches and religious institutions given in the Constitution ought to be protected by that statute.

Q. Do you feel there is an anti-Christian sentiment apparent in either Congressional action or in current litigation in our land?

A. I think that some things that are happening in law-making and litigation are inspired by essentially an anti-Christian outlook. The media are constantly abusing Christian morals and sentiments, holding them up to ridicule or attacking them. The more the public becomes dependent on the visual media, and the more the media become a part of the public attitudes, the more the media’s attitudes will be reflected in legislation. In the area of litigation, there are simply zealots for bad causes that are determined to promote them and seem to have the funding to do it.

Q. What can evangelical Christians do?

A. Obviously, the most basic thing of all is to live the Christian life and pray. There is nothing that God cannot do. Second, form bonds with like-minded people; this kind of coalition on limited objectives, such as abortion, is important. I also think we must overcome the impact of the media. We must neutralize them to the best extent we can. Part of that means we must stand up to the media and expose what they are doing.