Marcus Fabius Quintilianus, in his De Institutione Oratoria, masterfully defined the rule against which we all must measure our writing: “We should not write so that it is possible for [the reader] to understand us, but so that it is impossible for him to misunderstand us.” By Quintilian’s just standard, I have failed Jonathan Cone, perhaps among others, and for that I apologize. I herewith seek to make restitution.
Remarkably, it seems that I have failed the worst at the most critical junctures, Cone having misunderstood me precisely there. I humbly offer correction at these points, seeking alongside those corrections to reassert the central thesis of my original essay: Together both the Free Exercise Clause and the Establishment Clause of the First Amendment establish a right to religious liberty that you, as an individual citizen of this country, possess.
To correct the misunderstandings before reiterating that thesis:
First, Cone asserted that he detected in my original essay “an assumption that…if something is not prohibited by the Federal Constitution, it is therefore lawful.” I regret that Cone inferred this from my article, for I certainly did not mean to imply it. I wrote, for example, “…Utah could establish Mormonism…” if Thomas’s view were to prevail. Cone cried foul, noting that the Utah state constitution precludes the establishment of Mormonism in the state.
The deficiency in my writing is simply this: I assumed that my readers would understand that if the people of Utah undertook to establish Mormonism as the official state religion, they would do so precisely by amending the text of their state constitution. Yes, their constitution as it now stands decrees religious liberty, but this hardly disproves my simple assertion that “Utah could establish Mormonism,” unless Mr. Cone will teach us about some legal theory beyond my ken by which the people of Utah are no longer able to amend their constitution. Of course, according to all of the Supreme Court justices except for Associate Justice Thomas, the Establishment Clause of the U. S. Constitution presently prevents the people of Utah from amending their state constitution in this way. If Thomas’s theory (and presumably Cone’s) were to win the day, what does Cone think would make it impossible for the people of Utah to amend their constitution in this way, if they were so inclined? Nothing comes to my mind. The same principal applies to every example that I gave.
The point is neither arcane nor irrelevant: It matters whether your rights are guaranteed by the Federal government on the one hand or by state, county, or local governments on the other hand. It matters, among other reasons, simply because it requires the consent and cooperation of more people to abrogate your rights on the Federal level than it does at any other level in our nation. The assumption that seems to be present in Mr. Cone’s essay is that it matters not at all whether your religious liberty is secured for you by the Federal Constitution, by the constitution of your state, by local ordinance, or by the covenant of your home-owners association, so long as it is provided by someone. No, that’s not right either. The force of Cone’s argument seems to suggest not that it doesn’t matter, but that it would be far better to have religious liberty guaranteed to you by no authority other than your homeowner’s association, since an adverse ruling would only affect your neighborhood, and it would be so much easier to move across town to escape religious totalitarianism than to have to move across the country to a more friendly state. I demur, believing that the security of your rights depends to some considerable degree upon the size and strength of whoever is securing them. I rest much easier with a guarantee of religious liberty in the Federal Constitution than I would if that precious liberty were vulnerable to the whims of my mayor and city council.
Second, Cone has offered correction to my essay by reminding us that “In actuality, whether, and exactly how, the Fourteenth Amendment made the Bill of Rights enforceable against the States has been a highly debated question in Constitutional law.” I thank Cone for the reminder, and I can see why he was confused by my sentence in my original article: “It is the very heart of the Fourteenth Amendment to take that which had not applied to the states before and to apply it to them henceforth.”
Cone seems to think that I was trying to assert something along the lines of “It is the very heart of the Fourteenth Amendment to take all of that which had not applied to the states before and to apply it to them henceforth.” Instead, I was simply trying to state that “It is the very heart of the Fourteenth Amendment to take some of that which had not applied to the states before—and nothing other than that which had not applied to the states before—and to apply it to them henceforth.” Had I composed the original sentence in this way, I do not think that Cone would have been able to misunderstand me in the way that he did. I apologize for the imprecision of my writing.
I had hoped that the flow of my argument would make plain my meaning. Justice Thomas had appealed to the narrative of history to demonstrate that the Establishment Clause did not prevent the several states in 1791 from having religious establishments. At this point, Thomas, Cone, and I agree (and indeed, no sane and well-read person can disagree, I do not think). Thomas seems to use that argument—the fact that states were not bound by the Establishment Clause prior to the Fourteenth Amendment—as a part of his foundation for the claim that it does not bind them today, after the Fourteenth Amendment.
And yet, one cannot presume that those things which did not apply to the states before the 1860s do not apply to them today. Why? Because it is the very heart of the Fourteenth Amendment to change the way that at least some of the protections guaranteed by the Federal Constitution affect the operations of state governments. In other words, if we had been content for state governments to continue to relate to the Bill of Rights as they had since 1791, then there would have been no need for a Fourteenth Amendment. The practices of state governments with regard to religious establishments in 1791, therefore, demonstrates nothing ipso facto about whether the Establishment Clause of the First Amendment has rightfully been incorporated under the Fourteenth Amendment. That’s what I was trying to say, and I sincerely wish that I had said it more clearly the first time.
How, then, do we decide which provisions of the Bill of Rights ought to receive the benefit of incorporation under the Fourteenth Amendment? Thomas was arguing (and Cone is silent here) that incorporation should extend to the Free Exercise Clause and not to the Establishment Clause because he sees the Free Exercise Clause as codifying an “individual right” and the Establishment Clause as codifying a right for which “the States are the particular beneficiaries.” I believe that “whenever a state establishes a religion, it necessarily infringes upon rights to the free exercise of religion.” I am not the first to have offered this point of view, but I remain vigilant in it even after Mr. Cone’s essay.
In fact, I am indebted to Cone for his providing additional evidence to support my view. Cone approvingly cited this important case: “And while Nevada’s State Constitution does not contain explicit language forbidding the establishment of religion, it does protect the ‘free exercise and enjoyment of religious profession and worship without discrimination or preference.’ A federal court recently concluded that this language prohibits Nevada from establishing a State religion.” Do you see what happened there? A federal court concluded that a guarantee of free religious exercise is ipso facto a guarantee against state religious establishment.
If that is true—if a right to free exercise necessarily entails a ban against religious establishment—then it is nonsensical to argue that the Free Exercise Clause enshrines an individual right while the Establishment Clause does not. That which an individual right necessarily entails is necessarily an individual right.
You and I as individuals have the right for our local, county, state, and national governments not to have established churches. We have the right not to have our tax dollars spent to support other faiths. We have the right not to be represented by any other faith by mere virtue of our citizenship. We have the right to elect officials of any faith to any office at any level. We have the right to be elected ourselves to any office at any level without our being compelled by virtue of our office to corrupt our consciences by our entanglement with any established faith with which we might disagree. If we do not have those rights, then our rights to free exercise are conditional, applied only so long as we do not aspire to too great a role in our state or municipality.
A holistic view of religious liberty recognizes that free exercise and disestablishment are but two inseparable sides of the same coin. That coin of religious liberty is not mere pocket change; it is of precious value. We ought to be careful not to deface it on either side.