Freedom of Religion

One of my areas of academic interest is Constitutional law. Yes, I know half of you just fell asleep and the other half turned on the TV. Sorry, but this is exciting stuff! Constitutional law includes the actual wording in the Constitution and how that wording has been interpreted since 1789, but mostly how the Supreme Court has interpreted it since 1801 when John Marshall became Chief Justice. I admit openly and without shame that I chose this topic because I’m sort of busy these days and I needed something that did not require much effort, but it is still a topic worth exploring.

Almost every passage in the Constitution is open to interpretation, and many passages have been interpreted numerous time.  The first passage of the First Amendment is no exception: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. There are two distinct passages addressing “freedom of religion”, the first saying Congress cannot make laws respecting the “establishment” of religion and the second saying Congress may not interfere with the “free exercise” of religion. Both are open to interpretation.

  • The Establishment Clause:  Most Americans believe the Constitution specifically creates “separation of church and state”, but it does not. One of our most important Constitutional principles…is not in the Constitution. Weird, huh? The phrase “separation of church and state” actually came from an 1802 letter Thomas Jefferson wrote to The Danbury Baptist Association of Connecticut in which he stated that the Establishment Clause “…builds a wall of separation between church and state…”.

So what does separation of church and state mean? It obviously means that Congress cannot prohibit the establishment of a religion, and it also means Congress cannot create a national religion (though, interestingly, states were not prohibited from doing so). Does it also mean that government may have absolutely no interaction with religion and vice versa? Does it mean that government may provide benefits to religious groups so long as it doesn’t favor one over the other? Does it mean that religious groups should have no influence over government?As with most Constitutional issues, this one has been decided by the Supreme Court.

The phrase was ignored for decades, but in 1878 the Court stated that Jefferson’s interpretation “may be accepted almost as an authoritative declaration of the scope and effect of the amendment “. In other words, Jefferson’s interpretation was the one the Court would use thereafter. In 1947 Justice Hugo Black stated that  “The First Amendment has erected ‘a wall of separation between church and state.’ . . . that wall must be kept high and impregnable.” A long line of case law using this interpretation followed, but since the Court is almost always divided the decisions have led to an inconsistent result. The Court has used this interpretation to declare a broad range of governmental activity unconstitutional including mandatory school prayer, teaching religious principles in school, having nativity scenes on government property, a state’s decision to deny unemployment benefits to a Seventh Day Adventist worker who lost her job for refusing to work on her Sabbath, hanging the Ten Commandments in public buildings, and much more. Many or most of these decisions were made by a divided Court, so there is no unanimous acceptance or interpretation of Jefferson’s “wall”.

  • The “Free Exercise” Clause: This clause obviously means that Congress cannot prohibit citizens from exercising their religious beliefs, but does that mean that a Satanist should be able to perform human sacrifice or a fringe Mormon minister should be able to marry a twelve year-old girl? Again, this clause eventually required interpretation.

In 1879 the Court ruled that free exercise meant that we can believe what we choose, but the government may regulate our religious actions. This case dealt with a Mormon wanting multiple wives in violation of federal law restricting marriage to one wife/one husband; the Court said he could believe in multiple wives but could only marry one. The Court has used this interpretation to require Christian Scientist parents to immunize their children, to keep Native Americans from using peyote in their religious ceremonies (even though some had been doing so long before we took their land), to allow Jehovah’s Witness children to opt out of reciting the Pledge of Allegiance,  invalidated state laws banning schools from teaching about evolution, and more.  (I can provide citations for all these cases, but I’m just being lazy. Ask and I’ll provide them)

Where does this leave us in regard to freedom of religion? As I’ve said previously, we must follow the Constitution as our guiding document, but it was written in 1787 for a much different society.  By now it should be clear that the Supreme Court ultimately decides how to interpret the two passages related to freedom of religion, so going forward the composition of that Court will be significant for interpreting this and numerous other passages as well. A changed Court could permit the government to break down some of those barriers now erected between church and state. Here are a few scenarios I find disconcerting:

  • The Court again allows organized prayer in school. As I stated earlier, the Court has never ruled prayer in school unconstitutional; the appropriate adage is that as long as there are exams there will be prayer in school! Organized prayer is different, however. When I was a kid our principal required us to recite The Lord’s Prayer at the beginning of the class day (this was before the Court ruled that practice unconstitutional). America is a diverse nation which includes people of all faiths, and if administrators or other governmental officials are permitted to select a prayer they will certainly choose one based on their personal faiths. This excludes children from other faith communities.
  • If the Court reversed decisions regarding the teaching of evolution our children could finish public (government-funded)  schools without being exposed to scientific research accepted by 98% of scientists  affiliated with the American Association for the Advancement of Science. I personally want children exposed to scientific evidence whether or not that evidence supports my personal beliefs.
  • During WW II The Court permitted the relocating of American citizens of Japanese heritage to camps because of their perceived threat. This decision has been largely discredited as racist and xenophobic. What if future leaders decided to do the same with, for example, Muslim groups strictly because of their religious convictions (this is, at least seemingly, an unlikely scenario but so was interring Americans of Japanese descent)? The Court must be able to stand up to such actions and protect the rights of those in the minority. Doing so is, by the way, a primary role of the Court.
  • What if a religious or political group that opposed all reproductive rights (birth control and abortion) based on their religious beliefs gained the majority in Congress and the White House and tried to impose restrictions? I’ll not argue abortion in this blog (too sensitive with no way to compromise), but I’ll bet most Americans are not aware that until 1965 some states did prohibit the sale of birth control devices. In that year the Court struck down as unconstitutional  a Connecticut law prohibiting people from using “any drug, medicinal article or instrument for the purpose of preventing conception”.
  • Marriage equality. I know some disagree with me on this, and I understand that, but in my mind government should not be imposing restrictions on adults making life choices with other adults if those choices do not harm others.  In a 2015 decision the Supreme Court by a 5-4 vote declared marriage a fundamental right that extends to same-sex couples. It is pretty clear in my mind that most of the objections to this decision were based on religious principles, and those principles should not be the basis of public policy decisions.

I could continue, but I’m losing the attention of the one person still reading. Here are points to consider:

  • The Constitution never uses the word “God”, instead giving authority to the people.
  • Some folks often claim that the Founding Fathers were all Christians and, consequently, that America was founded as a Christian nation. Yes, most (but not all) of the Founders did claim some type of Christianity as their personal faith, but that doesn’t really tell us a lot about their personal faith because, like today, some were much more devout than others, and many opposed large, organized religion. They saw faith as more personal than public. It is also worth noting that about half of the Constitution’s signers owned slaves or promoted the slave trade, so their beliefs of more than 200 years ago may lack contemporary guidance. America was not founded as a “Christian nation”. Remember that many of those who came to America during colonization did so to escape religious persecution in their own countries.
  • Many of our Founders argued for religious tolerance. Thomas Jefferson and Richard Henry Lee forcefully argued for accepting Muslims, Jews, pagans, and people of other religions. George Washington stated that he would gladly welcome Muslims to Mt. Vernon if they were good workers!
  • Article VI of The Constitution states that “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (again, this only applied the federal officials, not those on the state or local level). The Founding Fathers were very careful to remove religion as a qualification for holding office.

Believing in freedom of religion is not being anti-religion. Far from it. I am not anti-religion at all, I just think my personal spiritual beliefs should not control others’ rights. Supporting separation of church and state simply favors an idea that began developing among Christian writers in the 12th century and wound its way through much philosophical literature during the last 800 years. If you want to read an early American writer supporting separation of church and state and religious tolerance, I suggest reading this piece written by Roger Williams, a 17th century theologian and founder of The First Baptist Church in America.  For other arguments regarding religious tolerance you might want to read about Anne Hutchison  and others.