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What's Not Wrong With the Williamsburg Charter*
Published online by Cambridge University Press: 24 April 2015
Extract
“[T]he chief menace to religious liberty today is the expanding power of government control over personal behavior and the institutions of society, when the government acts not so much in deliberate hostility to, but in reckless disregard of, communal belief and personal conscience.”
— The Williamsburg CharterThe odd title I chose for this article may betray a feeling of defensiveness about the Charter. “What's right with the Charter” might imply that much about it isn't right. “What's wrong with the Charter” would surely imply that it's totally bad. My title is meant to point to criticisms which have been leveled against the Charter and to say that, whatever its faults may be, those are not the things which are wrong with it. My title leaves the implication that the Charter isn't perfect. It is not. I thought it might be useful, therefore, to take up the ill-founded attacks on the Charter which caused some very good people to decline to sign it.
In order both to appreciate the great quality of the Charter and to see its limitations, it is important to understand that because of the religious and philosophic diversity of its drafters, it could only go so far in achieving agreement on issues of religious liberty. It did not even attempt to explore certain finite controversies such as the Adolescent Pregnancy Act, protection of religious freedom in the public schools, government aid to parents of religious school children, the “equal access” issue, religious tax exemption, or refusal of the Amish to use state-prescribed slow-moving vehicle signs. Second, it contains, in places, language that some would prefer to see altered or omitted, or there are omissions where some would like to supply text.
- Type
- I. Commentary on The Williamsburg Charter
- Information
- Copyright
- Copyright © Center for the Study of Law and Religion at Emory University 1990
Footnotes
*
An earlier version of this article appeared in This World, No. 24 (Winter 1989) and is reprinted with the permission of the author and the publisher.
References
1. The Williamsburg Charter, 9 above.
2. The Declaration spoke of “unalienable” rights. 1 Stat 1 (1776).
3. Lyng v Northwest Indian Cemetery Protective Ass'n, 485 US 439 (1988).
4. Id at 449, 451.
5. Church of St Paul and St Andrew v Barwick, 67 NY 2d 510, 496 NE 2d 183, cert denied, 479 US 985 (1986); see also Rector, Wardens and Members of the Vestry of St Bartholomew's Church v City of New York, 728 F Supp 958 (SDNY 1989) (free exercise clause no barrier to city's “preservation” of church), aff'd, 914 F2d 348 (2d Cir 1990); but see Society of Jesus in New England v Boston Landmarks Comm'n, Civ Nos 87-3168, 87-4751, 87-6586 (Super Ct, Suffolk County, Mass 1989) (free exercise clause prevents landmarking of interior of church) reported in 9 Religious Freedom Rptr 342, aff'd, 408 Mass 38 (1990) (same result under state constitution).
6. See Jimmy Swaggart Ministries v California Bd of Equalization, 110 S Ct 688 (1990) (sales and use tax on the distribution of religious literature to adherents); Bethel Baptist Church v United States, 822 F2d 1334 (3rd Cir 1987), cert denied, 485 US 959 (1988).
7. See Corpus Christi People's Baptist Church v State of Texas, 683 SW 2d 692, cert denied, 474 US 801 (1985).
8. 410 US 113 (1973).
9. Emphatic indeed. The Founding Fathers envisioned a higher law without whose substance and spirit even the Constitution itself would soon be only paper.
10. For example, in Wisconsin v Yoder, 406 US 205 (1972), it upheld the religious rights of Amish parents. Editor's note: Mr. Ball was counsel of record for the Amish in this case.
11. Pierce v Society of Sisters, 268 US 501 (1925).
12. The Williamsburg Charter, 16 above.
13. Id.
14. Indeed we had warned against any interpretation which did not take into account “immutable principles of justice.” Id.
15. 272 US 365 (1926).
16. The Williamsburg Charter, 9-10 above.
17. Id, 14 above.