By Sam Ozer-Staton
Michael Flynn’s comments from last weekend have been well covered. “We must have one religion,” the retired lieutenant general and former national security advisor said at a far-right conference in Texas. “One nation under God and one religion under God, right?”
Flynn’s remarks triggered sharp condemnation from a chorus of political, military, and media figures. “Sure glad we live in a Constitutional Republic instead of a theocracy,” tweeted Rep. Ted Lieu (D-CA). Others on social media echoed Lieu’s sentiments, calling Flynn’s remarks “un-American” and “unconstitutional.”
But what does the Constitution say about Flynn’s notion that the United States adopt “one religion”? I asked the experts.
“If there was an idea to encapsulate the thing that the framers were against when it came to religious freedom, it would be exactly what Michael Flynn said,” said Corey Brettshneider, a professor of political science at Brown University and the author of the Religious Freedom volume of the Penguin Liberty Series. “It’s like [Flynn’s] the poster child for the opposite of what the First Amendment guarantees.”
The First Amendment begins with two clauses that are concerned with religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
According to John Q. Barrett, the Benjamin N. Cardozo Professor of Law at St. John’s University School of Law, those first two clauses — the one prohibiting the “establishment” of religion and the one protecting its “free exercise” — are often in tension.
“[There are] boundary areas that are complicated, but not in this case, not in Flynn’s notion that we should be a one-religion country,” Barrett said. “That offends both the Establishment Clause, which stands for us not being a country with an established church, and the Free Exercise Clause, which stands for the government not getting in the way of individual choices to worship whatever particular religion one chooses, or to have no religion at all.”
The Establishment Clause, Barrett said, was specifically designed to prohibit a state-sponsored church in the mold of the Church of England. “The Establishment Clause, in its most core form, is a prohibition on the government establishing a church. There is a Church of England, but there may not be a Church of the United States. That’s what the Establishment Clause means.”
But even if the adoption of a state-sponsored single religion in the United States is plainly unconstitutional, the debates around the meaning of the First Amendment’s religion clauses have not always been so clear-cut.
The Supreme Court’s interpretation of the Establishment Clause has evolved throughout American history, said Nelson Tebbe, a leading expert on religious freedom and constitutional law who serves as the Jane M.G. Foster Professor of Law at Cornell Law School. “In the middle of the 20th century, the Establishment Clause [was] applied against the states and start[ed] to mean different things, and in its heyday it really stood for the separation of church and state,” Tebbe said, adding: “A lot of Americans thought that ‘separation of church and state’ was a phrase that was included in the U.S. Constitution, which it of course wasn’t.”
In that era, many of the Court’s high-profile First Amendment cases helped create a broad construction of the Establishment Clause. Those cases involved state-sanctioned prayer in public schools, religious symbols on public land, and government funding for religious institutions.
“At its high water mark, the Supreme Court was invalidating programs that would funnel government money to religious uses, especially in the public schools but not only there,” Tebbe said. “So there was a kind of ‘separation-of-funding’ idea in the 1950s, 60s and 70s, and also a kind of separation when it came to government expression.”
In recent years, the Supreme Court has backtracked on a lot of that doctrine. “These days, the Establishment Clause does very little work as hard constitutional law. At most, it requires the government to be neutral, but it doesn’t seem to require a separation of church and state,” Tebbe said.
If there has been a historical tension between the two religion clauses, the Free Exercise Clause is now the one in favor, said John Q. Barrett. “The pendulum historically swings between the two clauses, and right now the pendulum has swung toward a robust inflated protection for free exercise, and less of a concern about establishment.”
He specifically cited the recent spate of COVID-19 public health cases in which the Supreme Court has considered the constitutionality of government restrictions on religious gatherings. “The Court since last year — since Justice Amy Coney Barrett was appointed — has struck down those restrictions,” Barrett said. “There’s a 5-4 majority of the Court that thinks that the Free Exercise Clause — thinks that religion — has to be treated at least as well as, if not better than, secular activity. If 50 people can go to a grocery store, 50 people should be able to stand next to each other and worship.”
The constitutional scholars I spoke to were quick to point out that the Supreme Court’s shift in Establishment Clause doctrine doesn’t come close to validating a “one religion” philosophy of American government. “Even under the thinnest understanding of the Establishment Clause, a government official couldn’t say ‘we should have one religion,’ or even that the government should adopt monotheism as its official policy, so I think that’s why people were shocked by the Flynn comments,” Nelson Tebbe said.
While Flynn’s call for a theocracy doesn’t pass legal muster, it speaks to a broader strain of anti-democratic politics in the United States. According to Corey Brettschneider, who has written extensively about the threats to democracy in the post-Trump era, “[It could be] extreme ignorance. Or I think what’s more likely is that he is knowledgeable enough to know that he is challenging the American tradition, and he wants a very different regime.” He added: “This strikes me as part-and-parcel of a deeply anti-democratic — anti-constitutionally democratic — way of approaching politics. And it perfectly encapsulates the kind of tyranny that the framers were worried about.”
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