Originalists Against Satanism
The Founders would not have considered Satanism a real religion.
Last month, as tensions between a school district in my area of Pennsylvania and the Satanic Temple were heading toward a lawsuit, I wrote that there was no constitutional right to Satanism. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The argument was simply that, at the time the First Amendment was ratified, the definition of the word “religion” clearly did not include Satanism. Therefore, under basic originalist principles of constitutional interpretation, Satanism should not be protected as a religion under the First Amendment.
It is one thing to write essays about the ideal and proper interpretation of the Constitution. It is quite another to litigate real facts and circumstances before the federal courts. A couple weeks ago, the ACLU, on behalf of the Satanic Temple, filed suit against the Saucon Valley School District for failure to approve an after-school Satan club. The lawsuit alleges First Amendment violations of both the Establishment Clause and Free Exercise Clause, as well as violation of the constitutional right to freedom of speech.
Among conservative religious liberty litigators, the original thesis—that the Satanic Temple should not qualify as a religion under the original meaning of the First Amendment—is generally well-regarded. Even if the courts have been veering off track in their definition of religion in recent decades, originalist attorneys seem to agree that non-theistic groups like the Satanic Temple ought not to be considered religions under the Constitution.
The free speech issue is trickier. Historically, there were several generally accepted exceptions to the right to free speech when the Bill of Rights was passed, such as defamation, fraud, obscenity, and threats. That list properly includes blasphemy. There is a long tradition of blasphemy as an exception to the constitutional right to free speech, as courts from the time of the Founding to as recently as World War II have consistently held anti-blasphemy laws to be consistent with the First Amendment.
The consensus today seems to be that, while this argument is true, it is unlikely to be accepted by today’s courts to permit the exclusion of an after-school Satan club when other “benevolent” organizations are allowed. It seems like, even among conservative attorneys litigating in this field, these fights are too far gone and not worth taking up. It seems there are more promising arguments to take up and win in the name of religious freedom.
Public-interest firms have limited resources and an almost infinite number of potential cases to take on. Therefore, they need to discern how best to spend their time. But it is also important for conservatives to go beyond the low-hanging fruit, beyond the most promising and winnable issues. Sometimes we need to lay the groundwork for an ambitious long game. If this is a minority viewpoint on the right, that is fine. Sometimes, one has to dissent.
While dissenting opinions from courts are not law, they are not simply the whining of the losing side. They serve an important purpose. The many excellent dissenting opinions written in recent decades, particularly by Justices Scalia and Thomas, show that dissents have a crucial role in shaping law. Today’s dissents can become tomorrow’s majority opinions, as seen in the period from Roe v. Wade to Dobbs. Even if there is not enough influence, power, votes, or sufficient public opinion behind a particular good idea today, it is worth articulating that idea today anyway. It can shape the opinions of others today, increase the power and influence of that opinion, and lead more people to hold that opinion tomorrow.
“Living constitutionalism” in any form remains an unacceptable way to view and interpret the Constitution. Despite progressive claims in recent decades, the Constitution is not a living, breathing document that says whatever one thinks it ought to say for the modern day and age. The Constitution is a fixed legal document, which says and means the same thing it said and meant at the time it was enacted. Therefore, one cannot simply take a moral judgment (that Satanism is harmful in all forms) and turn it into a constitutional issue (since Satanism is harmful, it must not be constitutionally protected). The reality is that sometimes the Constitution is silent on or perhaps even in opposition to something morally good and proper. If it is silent, the answer is to pass a law. If it is opposed, the answer is to amend the Constitution.
It is not an acceptable answer for courts to interpret the Constitution to say what it does not say. Judges are bound to uphold and defend the Constitution, which is "the supreme law of the land." The fact that we have a written constitution as the supreme law of our land seems to mean that originalism is the proper way for judges to fulfill their oath. It might seem better to have a system where appeals to court precedent, common law, or general questions of fairness and justice may override inconvenient constitutional text, but that is not the system we have.
That being said, some modern takes on originalist constitutional interpretation err by seemingly prioritizing neutrality as the goal itself. Criticism of originalism from the right, particularly that of “common good constitutionalists” such as Adrian Vermeule, argue that originalism was a useful tool to combat progressivism but not a necessary principle of constitutional interpretation for all times. While it is an intriguing argument for a conservative tired of weak libertarian originalism, there are reasons to be skeptical (reasons beyond the scope of this essay).
But the common good constitutionalist criticism points to something true: in the conservative legal movement’s adoption of originalism, many seem to have adopted value neutrality as the highest good. One can search dictionaries for the original meaning of the words at the time of enactment, but must take care to pass no judgment on the good objectives the legislators were obviously enacting by their words. This can be rejected without throwing out the originalist baby with the bathwater. There are other ways to be an originalist, to strive for the common good while remaining within the original meaning of the text.
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Back once more to the Satanism issue. A multitude of religions (even those we think are clearly untrue) have First Amendment rights to free exercise. Viewpoints we find wrong or even dangerous are entitled to free speech protection. But one need not be so captivated by these general concepts of liberty that he fails to apply the proper constraints that existed at the time of the Founding. Yes, there is broad freedom of religion in this country, but not every system of belief fits the definition of religion. Yes, the First Amendment provides robust free speech rights, but there are many exceptions, and blasphemy is one of them.
There is nothing wrong with articulating a constitutional position that has a moral foundation—in this case, that Satanism is not a protected religion and that satanic talk is blasphemy unprotected by freedom of speech. Every legal question is a moral question: both sides of the debates about the constitutionality of everything from abortion to the death penalty are ultimately making moral arguments. It is the job of lawyers and policymakers to advocate for justice under the law. If we find something to be morally just and proper, it is not only acceptable but necessary to make good faith legal arguments in support of those positions.
It seems the state of our courts, and even of the conservative movement, is not in a place where these First Amendment arguments against Satanism are mainstream, popular, or likely to succeed. But today’s dissents can be tomorrow’s majority opinions. So if after-school Satan clubs in middle schools currently have the blessing of federal courts, keep fighting for saner times and homeschool your kids in the meantime. It is worth maintaining that Satanism is not only morally wrong and bad for the common good, but is not a protected religion nor protected speech under an originalist reading of the First Amendment. If that is not the opinion of the majority, then we should respectfully but vehemently dissent. One can hope and pray that today’s dissents may be tomorrow’s majorities.