By Russell Shaw
Until the Supreme Court’s decision overturning a federal campaign financing law — a ruling that prompted liberal cries of “judicial activism!” and led to the head-butting incident (I speak metaphorically) between President Obama and Justice Alito during the State of the Union speech — conventional wisdom held that the Roberts court leaned to judicial minimalism.
In general terms, judicial minimalism means deciding cases on the narrowest reasonable grounds instead of the most broad and expansive. And despite the recent hubbub, I strongly suspect it remains the fundamental judicial stance of a majority of the court’s present members.
If so, it would be rash to predict the court’s current term will be a banner year for landmark church-state jurisprudence. Yet two pending cases make that at least a possibility.
Sometime before the Supreme Court wraps up its work early next summer, it’s likely to decide: whether the presence of a large cross on national park property in California is a form of government endorsement of religion contrary to the First Amendment’s ban on the “establishment” of religion; and whether a Christian student group at a public law school in California violates anti-discrimination law or simply exercises its constitutional right of free exercise in barring homosexuals and non-believers from having leadership roles.
As often happens in Supreme Court litigation, including disputes about religion, the facts in these two cases little immediate impact on most people, but — given that constitutional provisions are at stake — their potential impact is extremely broad.
The first case (Salazar v. Buono) was orally argued before the court last Oct. 7, third day of its term. A decision could be forthcoming at any time. It involves a cross situated in San Bernardino County California’s Mojave National Preserve, first placed there in 1934 by the Veterans of Foreign Wars to honor veterans of World War I.
The cross went uncontested for 65 years, but trouble began in 1999 when the National Park Service refused to allow a Buddhist memorial while announcing it would get rid of the cross. Since then, Congress, two lower federal courts, the Department of the Interior, and the American Civil Liberties Union have all gotten into the act, with the lower courts seeing a constitutional violation involved.
In the second case, Hastings College of the Law in San Francisco, a part of the University of California system, withdrew recognition from a student group called the Christian Legal Society for refusing to accept its non-discrimination policy in the matters indicated above. Withdrawal of recognition meant the loss of meeting space, use of bulletin boards, things like that.
Last March the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, agreed with the law school. Three years before, however, the Seventh Circuit Court of Appeals, in Chicago, upheld the Christian Legal Society in a dispute with a law school there.
Different as these cases may appear, there is a discernible link between them. Each involves an effort to deny religion a modest form of public entitlement, involving neither coercion of others nor unprecedented favoritism to itself, for violating secularist notions of what is allowable in a public setting. At bottom, this is a part of the ongoing campaign for the privatization of religion.
One recalls the principle identified a century ago by philosopher William James. “In this age of toleration,” that tolerant and ironic man remarked, “no one will ever try to actively interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it.”
Russell Shaw is an OSV contributing editor.