December 19, 2005

Freedom Of, Freedom From

by PG

A conservative friend and I spotted the Onion's headline "Activist Judge Cancels Christmas," and read it differently. He predicted that there would be an instance of "life imitating art," and I found the notion of a judge's interfering with non-governmental celebration of Christmas as ridiculous as the Onion did. (The parody is not about state-sponsored Nativity scenes, which are likely to be found unconstitutional.) I said that I wouldn't want the government to attempt to represent Hinduism, as they'd probably make as much a muck of it as non-Hindu retailers do, and continued to be puzzled as to why Christians and the occasional Jew did. He replied that this was only because I was living in a country where the government was unlikely to do such a thing, and that I'd be less likely to protest it in India.

My understanding was that India's Constitution had requirements similar to those of the U.S. First Amendment, requiring that the government neither establish religion nor constrain the exercise of it. But a closer look shows that in this, as with so many things, the American Founders valued brevity over the locquacious explanation dear to South Asian hearts.

The First Amendment says simply, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and with that simplicity leaves room for scores of Supreme Court decisions and hundreds of books to try to figure out what those few words mean.

The Indian Constitution is far more explicit, and I pity the poor judges left with so little room to be activists. Article 15 prohibits discrimination on the basis of religion; Article 16 prohibits such discrimination in public employment; Article 25 guarantees freedom of conscience; Article 26, freedom for religious institutions; Article 27, freedom from paying taxes specifically marked for a particular religion. Article 28 is very detailed: it says that an educational institution supported wholly by the State cannot provide religious instruction, except for institutions administered by the State but established by a trust that requires such instruction; it also says that no State-recognized or even -partly funded institution can require attendance at religious instruction or worship. Article 30 applies Article 15's non-discrimination to establishing educational institutions and receiving state aid for them; Article 325 applies it to being on an election roll.

There are plenty of "Nothing in this article shall"s to allow the government all sorts of interference with religion. Article 16 says there can be a "law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." Article 25 allows the government to interfere with Hindu institutions: "the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."

In short -- too late! -- I was wrong in thinking that India's situation regarding church and state is much comparable to that of the U.S., notwithstanding this excellent article that attempts to draw parallels. India has a system much more like the one that conservatives prefer, in which government and religion are frequently "entangled," to use the terminology of exactly what is not supposed to happen in the U.S.

However, India also provides an excellent example of what happens when such entanglement is permitted. A single Google of "India government temple" turned up a 1983 Hinduism Today article about the Tamil Nadu State Department of Hindus' Religious and Charitable Endowments Commission's plan to assume the administration of the Chidambaram Nataraja temple. Nor does this appear to have been an isolated instance of interference; a couple of years ago, the government attempted to ban animal sacrifices at the same temple, and Tamil Nadu government continues to interfere with the language and practice of religion at temples under its oversight. Not to trash TN alone, my home state of Andhra Pradesh has engaged in various shady transactions involving temple lands, to the point that the courts now have to become active, if not activist.

I doubt that those who claim to desire more "religion in the public square" would want to have the public square in their religion. While funding can be quite nice, restrictions and takeover rarely is so welcome. Religious groups of all types in the U.S. already balk at having generally applicable laws applied to them (hence the RFRA and RLUIPA), so having the government make rules specifically intended to govern religious practice would be anathema.

(Cross-posted with some changes at Sepia Mutiny. A commenter there pointed to this supposed reaction by Judge Reinhardt to the Onion article.)

December 19, 2005 12:41 AM | TrackBack

I recently attended a scholarly discussion of the Massachusetts Constitution (1780). John Adams is claimed to be its primary author. Other of the original 13 states also adopted constitutions, even prior to Massachusetts. The MA Constitution included an establishment clause, as did several (but not all) of the other states' consitutions. In fact, there was a mandatory tithing requirement; but not limited to the established religion (Congregational) as there was a freedom to practice one's own (unestablished) religion. MA did not eliminate this establishment clause until 1837, the last state to do so.

The MA Constitution includes a Declaration of Rights that has some similarities with the federal Constitution's Bill of Rights. So do some of the other states' constitutions.

The framers of the US Constitution apparently had available the MA and other states' constitutions to use as guides. While the Bill of Rights in the First Amendment proscribed the establishment of a religion and permitted free exercise, it was of course limited to the federal government and did not limit the states. The religion clauses did not specifically provide for "freedom from religion", however. Query whether originalists would read such into the First Amendment?

I mention the MA Constitution because its language structure is quite stilted throughout. (I do not know about the other states' constitutions in this regard.) If the MA Constitution was used as a guide by the framers of the US Constitution, the framers improved greatly in writing style, simplicity and readability. I guess this is like an attorney having the benefit of a document and improves upon it in preparing a document for her client. A law student comparative study of the MA and other states' constitutions with the US Constitution might shed some light on originalism as the framers of the latter had the benefit of the former for perhaps as long as a decade. To this day, I find the US Constitution readable (although there remain interpretive issues); I cannot say the same for the MA Constitution with its many, many amendments. A complaint was made at this scholarly discussion that attorneys with cases before Massachusetts courts often fail to rely upon the MA Constitution, which may provide greater benefits or relief for a client than the US Constitution. While this may be so, the reason is the difficulty in understanding the stilted language and tying in the various amendments that themselves may be stilted.

One last point: The Fourteen Amendment: did it incorporate the religion clauses of the First Amendment such that a state could not now enact an establishment clause? What might Justice Thomas' view be?

Who out there has the "church key"?

Posted by: Shag from Brookline at December 20, 2005 09:12 AM

Thomas's view on the federalist aspect of the First Amendment is pretty well covered by his concurrence in Elk Grove Unified School District v. Newdow: "I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause."

My own opinion is that the Fourteenth Amendment incorporated the Bill of Rights quite fully inasmuch as the Bill deals with the rights of individuals.

Posted by: PG at December 25, 2005 07:54 PM
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