"We don't do God": religion in the public domain

Published in Halsbury's Law Exchange here

In Tom Wolfe's classic novel The Bonfire of the Vanities there is a very funny passage that will chime with anyone who has seen one of the more colourful litigants in person in action. In Manhattan, a most unfortunate character named Herbert Cantrell is on trial for manslaughter. Herbert has renamed himself "Herbert 92X" pursuant to his religious beliefs, although the sincerity of those beliefs is open to question. He is represented but his lawyer is so hapless, and Herbert so vociferous, that Herbert spends most of the time addressing the court in person. He insists on beginning each day in court with a reading from the Koran, and the judge, an irascible sort named Mike Kovitsky, allows this to happen to let the volatile Herbert let off steam and thus save time in the long run.

One day Herbert feels that he has been short-changed by the time allotted to his reading, and demands the right to continue. Kovitsky snarls that “We happen to live in a republic, and in this republic there is a separation of church and state”. In response Herbert triumphantly tells the judge to look behind himself, where emblazoned on the wall of the court are the words "In God We Trust". The court dissolves into fits of ill-restrained giggles; with the exception of Kovitsky, who explodes into rage, although he finds time to compliment Herbert for being so observant.

Such occasional religious references appear in various places in American public life in reality too, and according to this report from the UK Supreme Court blog the US Supreme Court has just refused to consider a challenge to the use of the words “So help me God” in the Presidential inauguration ceremony.

The case was brought by one Michael Newdow, a private individual. A few years previously Newdow had brought proceedings seeking to exclude the words “under God” during the Pledge of Allegiance in his daughter’s classroom each morning. That case ultimately failed on the ground that Newdow lacked standing to raise the issue on behalf of his daughter.

His later action initially sought an injunction to prevent the Chief Justice, John Roberts, from reciting the optional religious wording during President Obama’s ceremony in January 2009. He alleged that the wording violated the Constitution and infringed his freedom of religion (referring to the First Amendment’s establishment clause). The relief sought was later amended to include future inaugurations as well.

The case failed on the ground that the plaintiffs lacked appropriate legal standing to bring the case. Further, according to this website,

“Acting Solicitor General Neal Katyal wrote in his brief: “Because the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes, only a judicial order running against the president or president-elect would result in the relief that [the atheists] seek. But [they] have not filed suit against the president or president-elect.”

Mr. Katyal added that the appeals court had emphasized that “a court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.””

Leaving aside the technical legal and procedural points about standing, the case throws up an interesting question: is the President, or any other public official, merely expressing a personal view – protected by the right to freedom of speech and freedom of religion – or bringing religion into the public sphere where it should not be permitted because of the separation of church and state?

Other questions immediately present themselves too: what if the official has campaigned during the election partly on his or her religious faith? Is there a difference if she is appointed rather than elected, so that no democratic imprimatur can be claimed for her beliefs? Does it matter if the role is a narrow, technical one in respect of which religious beliefs can be seen to be irrelevant, as opposed to one with a broad scope such as that of president?

It seems to me that Mr Katyal’s reasoning is sound: the candidate should be entitled to make religious references in his or her speech, but only as an expression of personal faith.

Any public role should be required by law to be conducted without fear or favour towards all citizens, including all religious groups, which should effectively preclude any favouritism or other improper action, religiously motivated or otherwise.

That being so, expressions of private belief in public ceremonies should be unobjectionable. Indeed, it would be more honest for a public figure to be open about his or her beliefs if there is any suspicion that they have a role in his or her decision-making, as was inferred in relation to Tony Blair, for example.

On the other hand, it also follows that there should not be a compulsory religious element in public events, for that would be contrary to a separation of church and state and the requirement for the state to be neutral as between competing religions (and non-religious belief systems). In America this is easy to enforce legally because of the establishment clause. In Britain, however, it runs directly counter to the status of the Church of England. One suspects that if Mr Clegg’s constitutional reform effort gains the sort of momentum that it has so far lacked, that status may soon be within his sights.