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Shameless Plug
First Amendment Faith
The American Enterprise Online ^ | 6/29/05 / Nov/Dec 1995 | Michael McConnell

Posted on 06/30/2005 8:33:46 AM CDT by Valin
http://freerepublic.com/focus/f-news/1433812/posts

Should President Bush have an opportunity to name a new Supreme Court justice, the eminent legal scholar Michael McConnell is one of the leading candidates. Currently a judge on the United States Court of Appeals for the Tenth Circuit, McConnell was a professor at the University of Chicago Law School when he wrote an article for TAE on the importance of protecting the free expression of religious rights.

The Movement for Religious Rights

By Michael W. McConnell

In the past few decades, there has been an extraordinary secularization of American public life, especially in the schools. Religious and traditionalist parents are finding that their viewpoints and concerns are ruled out-of-order, while at the same time the schools can be used to promote ideas and values that are sometimes offensive and hostile to their own.

This has inspired many conservative Christian groups to propose legislation, or even a constitutional amendment, to guarantee equal treatment for religious speakers, groups, and ideas in the public sphere. This would end the double standard that currently denies religious speech and practice the protections offered all other kinds of expression. The proposals include two principles:

First, when private persons (including students in public schools) are permitted to engage in speech reflecting a secular viewpoint, then speech reflecting a religious viewpoint should be permitted on the same basis.

Second, when the government provides benefits to private activities, such as charitable work, health care, education, or art, there should be no discrimination or exclusion on the basis of religious expression, character, or motivation. Religious citizens should not be required to engage in self-censorship as a precondition to participation in public programs. (This idea was incorporated in the Senate welfare reform bill.)

Most people agree that government should be neutral toward religion, but the beginning of wisdom in this contentious area of law is to recognize that neutrality and secularism are not the same thing. In the marketplace of ideas, secular viewpoints and ideologies compete with religious viewpoints and ideologies. It is no more neutral to favor the secular over the religious than it is to favor the religious over the secular. It is time to reorient constitutional law away from the false neutrality of the secular state, and toward a genuine equality of rights.

The demand for religious equality is often denounced as a tactic of the so-called “religious right,” but it was Justice William Brennan, the leading liberal on the Court in this generation, who wrote that “religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The establishment clause…may not be used as a sword to justify repression of religion or its adherents from any aspect of public life” (McDaniel v. Paty, 1978).

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/Shameless Plug