The Supreme Court on Wednesday handed down its decision in the Mojave cross case, Salazar v. Buono. The decision retains (at least for now) the cross erected by World War I veterans to honor their fallen brothers in the Mojave National Monument. Many have written insightful commentary on the decision here, here and here.
But university officials should learn from this case that historically, the point of the Establishment Clause was to stop government coercion of its citizens to conform their thinking to the prevailing state orthodoxy. Universities should be teaching students our best American constitutional traditions - that the government may not force people to believe a certain way, or punish them because they speak out against what the government supports. Also, universities should be teaching students that they should tolerate speech they disagree with and that "being offended" by what someone else says does not give you the right to censor that person.
Instead, I am afraid that universities are training students that it is OK for the government to force them to believe a certain way, and that the Establishment Clause mainly and appropriately involves sensitive people being offended by passive religious symbols. The Mojave cross case, when considered in light of life today for university students, shows a huge example of using the First Amendment to strain the "gnat" of passive religious displays, while the rest of us swallow (tolerate) the massive "camel" of coercive university policies that violate students' constitutional rights ("straining the gnat and swallowing the camel" are the words of Jesus from Matthew 23:24, and I hope no one is offended that I quoted Him).
When the the First Congress drafted the First Amendment in 1789 to prevent Congress from establishing a religion, the members of Congress had plenty of direct experience with what state-established religions actually did. Established churches sustained their orthodoxy by formal laws forcing people to pay "tithes" to the state church, prohibiting "blasphemy" of the doctrines of the state church, forcing preachers to be licensed by the state church, requiring government officials to swear oaths of fidelity, conformity and adherence to the doctrines of the state church, as well as forcing students to learn the doctrines of the state church in school. See Justice Scalia's excellent summary on the historical realities of what established churches did in his dissenting opinion in Lee v. Weisman, 505 U.S. 577, 640-42 (1992).
So, when one surveys current American culture, are there public entities that today use the coercive legal mechanisms that established churches once used to enforce their orthodoxies? Yes! Today's American universities!
Do not be distracted by the fact that university officials and their policies do not use religious language or conduct religious ceremonies with candles, incense and liturgy. Focus on what established churches did,and how they parallel what universities are doing today:
- blasphemy laws (intended to punish those speaking against the doctrines of the state church) compared with speech codes (intended to punish those who use "hate speech");
- mandatory tithing to the state church (forcing people to fund advocacy of beliefs they disagree with) compared with mandatory student fees (universities forcing people to fund others' advocacy of ideas they oppose);
- preacher licenses (state church regulates speakers who advocate ideas in conflict with authorized views) compared with speech zones (university regulation of speakers advocating ideas in conflict with prevailing campus views);
- mandatory church attendance (forcing people to learn the doctrines of the state church) compared with mandatory "diversity training" (compelling students to change their wrong thinking to "correct" dogmas);
- doctrinal oaths (citizens and officials swore oaths to support the doctrines of the state church) compared with nondiscrimination policies (student groups promise in writing to conform to university-defined "diversity").
When I look at life experienced today by students on American university campuses, I am greatly concerned and saddened that universities are teaching their students that it is permissible for the government to punish them for saying the wrong thing, for the government to force student groups to promise to allow people who disagree with their views to join and run their groups, for the government to force people to contribute money to private groups advocating ideas the "contributors" don't support, for the government to determine if and when and where private groups can express their views on campus and for the government to force students to attend classes where the instructors' purpose is to convert the students away from their "narrow, obsolete" beliefs to "right, progressive thinking."
Additionally, at these same schools, students are learning that the government violates the Establishment Clause if it allows military veterans to honor their fallen comrades by placing a cross on government land and that it is OK to be highly offended by religious expression and to demand its censorship. What a warped imbalance! Universities are not training our future leaders well when the students experience daily on campus this skewed perspective on civil liberties, freedom of speech, right of conscience and religious liberties. When it comes to a correct understanding of the First Amendment and the Establishment Clause, universities need to stop straining the gnat and swallowing the camel.
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