Regrettably there are not a few who conceive that the language “Congress shall make no law respecting an establishment of religion” permits, if not mandates, the establishment of a secular state. Some may even fancy that the United States should approach the concept of such a state that has been adopted by France. This would be tragic.

France admittedly has a unique legal framework where the laïcité principle was in incubation for over two (2) centuries. However, as demonstrated by a most-recent abuse of this principle that is discussed in the New York Times “Another Hijab Furor Hits France, Over a Mother on a School Trip” article, its application yields egregious results and certainly should be avoided by all other legal systems.

Being offended appears to be a salient motivating sentiment these days. While in certain instances it could be a legitimate grievance, the character of the putative offense is the determining factor.

Ad hominem assertions are one set of offending assertions that generally should be castigated. However, an expression that the opinion of another is unfounded, imprudent, or unwise — or, perhaps, even just stupid — should never be restrained. Even more offensive is when an effort is made to restrain isolated actions of a person who is thereby expressing their own opinion.

The wearing of a hijab certainly is encompassed within the latter category. It is isolated in that it does not impinge upon or restrict either the liberty or freedom of another. And it is but the expression by the wearer of their own opinion, in this case of religious beliefs.

It does suggest that the wearer believes their opinion and beliefs are superior to those of persons who hold contrary opinions and beliefs. But are there not a diversity of opinions and beliefs? And is there not a value in this diversity as it allows an inducement, or at least an opportunity, for assessment of one’s own opinions and beliefs?

Homogeneity has many benefits; but they are best embraced and pursued in discrete communities. As duality is the rule in all systems, in order to preserve homogeneity, heterogeneity must also be preserved.

Here, those objecting to these public displays are seeking to suppress contrary opinions and beliefs. But the expression of opinions and beliefs, either verbally or non-verbally, best enables the preservation of them. These efforts at restriction obviously are destructive of both heterogeneity and diversity.

Even more abusive are restrictions that evince religious hostility or restrict religious diversity. Unlike actions that have common activities as a focus — and therefore have a greater capacity to unjustifiably impinge upon the liberty of another — religious opinions and beliefs are inherently of an abstract character. For this reason, as well as the very character of the focus of these beliefs, they have historically always been afforded greater protection. (It is of course recognized that history records numerous acts of violence perpetrated in the name of religion, but these almost universally constitute repudiation of those religious beliefs and thus do not invalidate the aforesaid assertion.)

The policy of laïcité had its origins in the French Revolution as a reaction to the power of the Church under the monarchy. Excessive power of the Church was deemed inconsistent with “Liberty, Equality and Fraternity”. But is excessive power concentration in the state an appropriate remedy for perceived ills?  For:

How is suppression of the expression of opinion consistent with Liberty?
If all are Equal, how can some opinions be more equal than others?
Does not relegation of some opinion to disfavored status in fact destroy Fraternity?

A Free State permits all actions of its citizens that do not impinge upon vital interests of another. These include all expressions and displays of religious opinions and beliefs. Secularism though seeks to suppress those expressions and beliefs by purging them from the public arena. It then by circumscribing and abbreviating the scope of those opinions which it deems permissible is in service of ignorance.

Let us then pray that this malignant contagion never infests our shores, and that we may succeed in retrenching the misconceived abbreviation of this liberty inflicted by our Courts in incipient service of this foreign doctrine.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

[The below are posts made by the undersigned in different fora, and now are incorporated here. These are provided both to memorialize them, and as background for the succeeding post.]

06/23/2019:

It is possible, as noted below, that Jefferson was aware of Roger Williams’ opinions. (I have no knowledge of Madison’s awareness thereof.) The issue though is the construction of the Free Establishment clause, and I tender that Mr. Chief Justice Waite, in Reynolds v United States (1879), followed by Mr. Justice Black, in Everson v Board of Education (1947), misconstrued the prohibition against any “law respecting an establishment of religion or prohibiting the free exercise thereof,” as requiring “a wall of separation between church and State”, as enunciated by Jefferson in his letter to the Danbury Baptists.

First, it of course was Madison that proposed in the First Congress the amendments that would, in part, become the Bill of Rights. While Madison and Jefferson agreed on many things (e.g. Kentucky and Virginia Resolutions), they certainly had differing opinions also. Further, Jefferson had no role in those amendments; when Congress passed the bill consisting of the proposed amendments to be submitted for ratification, Jefferson was still in France. How then Mr. Chief Justice Waite could find that Jefferson’s opinion “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured” is more than a bit surprising.

Second, while scholarly opinion differs on the origin of the phrase and what was understood by Jefferson thereby, there is some support that his opinion was parallel with that expressed by Roger Williams more than a century prior. (The fact that both Williams and the Baptists were opponents of the Congregationalists seems to me more than a bit material to the issue, as will appear below.) There is little dispute that Williams was not in the mainstream of thought on the question. Likewise, I would modestly tender that, even if Jefferson intended what was later inferred by SCOTUS, neither was he in the mainstream.

Third, it would appear that Jefferson’s missive was intended more for political benefit than intended as a legal or philosophical exposition. It thus should earlier and now not have received the impact it was afforded.

New England, and Connecticut in particular, was the stronghold of Federalist politics. Providing support to Federalist opponents then was to the benefit of the Democratic-Republicans. According to Dumas Malone, perhaps his preeminent biographer, Jefferson circulated a draft of the letter only to his Postmaster General and Attorney General, his chief consultants on New England, for their comments. Malone concludes that, by the letter, Jefferson “was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth.” The “politico-religious rulers of that commonwealth” were the Congregationalists.

Malone does not indicate that it was also circulated to his Secretary of State, Madison. Further, my scanning of the correspondence between Jefferson and Madison during the last quarter of 1801 and the first few days of 1802, the letter to the Baptists being dated January 1, 1802, discloses no reference to it. If Jefferson had intended it to be “an authoritative declaration” on the First Amendment, would he not have also elicited Madison’s comments thereon?

The Reynolds and Everson decisions are now of course precedent. But, as we all know, precedent has not necessarily been without error. In this instance Jefferson’s metaphor resulted in an Historical Fiction that regrettably produced much misdirection in this jurisprudence.

06/24/2019:

I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I’m currently, in my “spare time”, sporadically revisiting some of Prof Miller’s works. These though of course dealt primarily with Massachusetts Bay’s theological, rather than political, structure.

I would concur that it appears Massachusetts Bay’s theocracy “went off the rails” as essentially being in conflict w/ their theology. One of the pronouncements of the Westminster Confession of Faith is that:

“God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also.”

Now admittedly when the Long Parliament caused the Westminster Assembly to be instituted, the Arbella had already sailed. Still, the attitude and practices of Winthrop et al ought not to have been at significant variance w/ those of his compatriots who remained behind.

Further, while Archbishop Laud was not installed as such also until after the sailing of the Arbella, his dominance and hostility should have been known by those in Boston. If one finds autocracy in England obnoxious, can one justify it in Boston?

Perhaps the conundrum can be justified by the necessity of contemporaneously establishing both the church and government in a virgin territory. (I’m currently listening to Bradford’s “History of the Plymouth Settlement”, and will find it interesting how it resolved this question. While the religious polity of the Separatists in Plymouth was different from their Boston counterparts, their theology was essentially the same.) Still, Boston’s variance in what it should have done seems indisputable.

The purpose then of the Establishment Clause isn’t questioned. My dispute is w/ the misuse of Jefferson’s metaphor — in Reynolds, Everson, and Justice Ginsburg’s Dissent — which has unduly expanded this purpose. Part of the abuse is Jefferson’s use of the dichotomy of “Church and State” whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term “religion”; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019