The Limits of David Barton’s “Freedom of Religion” Argument

Last week the Ninth Circuit rejected an appeal (McCollum v. CDCR) challenging the policy of the California Department of Corrections that allows only leaders of “five faiths” (which actually represent only four faiths—Protestant, Catholic, Muslim, Jewish and Native American) to serve as paid chaplains. The court didn’t address the merits of the case, but only whether the plaintiff McCollum (a Pagan minister) had standing to bring the case. Discussion of the case is all over the Pagan and Wiccan blogs, with some of the very best discussion and analysis is here.

David Barton’s organization Wallbuilders filed an amicus brief in the case. According to the brief, Barton, is “a recognized authority in American history and the role of religion in public life.” The brief adds:

as result of his expertise in these areas, he works as a consultant to national history textbook publishers. He has been appointed by the State Boards of Education in states such as California and Texas to help write the American history and government standards for students in those states. Mr. Barton also consults with Governors and State Boards of Education in several states, and he has testified in numerous state legislatures on American history.

While it’s not clear how much weight Barton’s brief carried with the court, it seems important given his acknowledged influence in the textbook industry.

Substantively, the reasoning found in the brief is a great example of how Barton reads the Constitution. For him, there is a singular view that can be attributed to “the Founders,” discernible by him. But in fact, the documents of the founding era are the product of hard-fought compromise among leaders, bound in time and culture, who profoundly disagreed with each other. They did not think they were writing a sacred text to which all subsequent generations of American were bound by a process that amounts to divining a singular “intent.”

As I have noted before (here and here), Barton’s style of reading the Constitution is modeled on his style of reading the Bible. He treats the Bible as a coherent singular document that can be read from start to finish to yield a clear, undisputed, objective meaning; when it is actually a collection of fragmented texts written over a very long period of time in different cultures, assembled into larger texts, then chosen from an even larger collection of texts in a political process, translated from ancient languages and finally interpreted in different ways by different communities. Every stage of that process continues to be profoundly disputed by scholars and there is always an interpretative framework (albeit all too often an unrecognized one) under any reading of it.

The argument Barton made in the amicus brief, moreover, illustrates a second important point. He is being disingenuous when, outside his own little tribe, insists he just wants everyone to have the opportunity to practice their religion freely. He claims this, even to the point of saying that a Muslim-majority community should be able to make “Shar’ia Law” the law of the land—though he did backtrack on that one later.

He argues in this brief, however, that only those religions that fit with what he thinks the founders meant by “religion” should be protected. Protected religion is either Christianity alone or the larger category of monotheism—Barton asserts that rights of conscience don’t extend to atheists either (and by implication Pagans, Buddhists and Hindus):

The Founders were well aware of Christianity, of non-Christian monotheistic belief systems, of atheism, and of heathens and pagans. Thus, whether this Court agrees that “religion” meant monotheism or believes that it meant Christianity; and whether this Court agrees that a belief in future rewards and punishments was part of the definition of “religion,” or believes the opposite; it is clear that atheism, heathenism, and paganism were not part of the definition of “religion.”

And on other occasions Barton has argued against the free exercise rights of Muslims because Islam is “not a religion.”

Indeed, the term religion does have a complicated history and it has often been used (or denied) to legitimize dominance of one group over another. Initially enslaved Africans were thought to be “without religion,” and, in another example, Native Americans were considered “without religion,” and this justified taking their land.

This brief is important because in it Barton made explicit what we have all suspected but which he denies: the only religion protected under his reading of the Constitution is Christianity (and maybe Judaism).

jingerso@unf.edu'

Julie Ingersoll is Associate Professor of Religious Studies at the University of North Florida. She is the author of Evangelical Christian Women: War Stories in the Gender Battles and is currently writing a book on the influence of Christian Reconstructionism.