This booklet provides an account of the history and current controversies over religious disestablishment. It explains how the constitutional structure of the American government affects religious freedom and in surveying some of the most important Supreme Court cases dealing with religion, it provides an overview of the status of religious freedom in the United States.
1. THE BOISI CENTER PAPERS ON RELIGION IN THE UNITED STATES Separation of Church and State Religious belief and practice remain vibrant in the United States despite—or more likely, because of— the separation of church and state. This paper provides an account of the history and current controversies over religious disestablishment. It explains how the constitutional structure of the American government affects religious freedom; and in surveying some of the most important Supreme Court cases dealing with religion, it provides an overview of the status of religious freedom in the United States. Religious belief among Americans today is as scriptures, or define creedal statements of faith. vigorous, dynamic and widespread as it ever has Although this arrangement is widely known in been. Immigration constantly brings new and the United States as the “separation of church and different religious traditions and practices to the state,” owing to the predominance of Christian United States, even as the Christian traditions to churches, it also applies to mosques, synagogues, which most Americans adhere continue to adapt and indeed all religious institutions of any sort. to the needs of an ever-changing population. Scholars often use the term “disestablishment” to Approximately ninety percent of Americans specify the legal aspect of the concept, but by profess a belief in God, and religion remains a whatever name it is a core principle and defining pervasive influence on American culture, politics feature of American political life. and public policy. Although many Americans find these facts Yet the United States is among the few nations in unremarkable because they are so familiar, the world that eschew an established state foreign observers—especially those from nations religion—indeed it was the first to do so, in 1791. with official religions—often ask keen questions As a result, the government is prohibited from about the American form of church-state supporting or endorsing any religion, or separation: If most Americans are Christians, why promoting one at the expense of another. Among would they not support the establishment of other things, this means it cannot appoint Christianity as the state religion? If the vast religious leaders, compel worship or prayer, majority of Americans believe in God, why not provide official interpretations of sacred inculcate that belief in students and other citizens
2. as a matter of public policy? And how is it possible States government—its federal system and that religious belief has flourished without the separation of powers—plays an important role in protection and support of the state? This paper will matters of religious freedom. In the United States address these and other questions through a focus the judiciary holds the exclusive authority to on the legal issues involved in religious interpret the Constitution (including its disestablishment specifically, and religious provisions for religious freedom) and to nullify freedom in general. For a more thorough any laws that violate that interpretation. examination of institutional religious pluralism Constitutional interpretations have changed over in the United States, and of the diversity of time (albeit slowly), and will continue to change as religious practices in this country, please see the new members of the judiciary apply the law to accompanying Boisi Center Papers on these new contexts. The second major section of this topics. paper illustrates the complexity (and sometimes incoherence) of the American church-state This paper is divided into two major sections. The arrangement through an historical overview of first examines the religious, philosophical and the most important judicial decisions in this area, political origins of disestablishment in this as well as an analysis of recent trends that will country, and explains the legal and constitutional likely impact church-state relations for decades to provisions that codify the principle. Special care is come. taken to explain how the structure of the United FOUNDING PRINCIPLES AND DOCUMENTS The fifteen years from 1776 to 1791 represent a Constitution of 1789 and the Bill of Rights in 1791 unique moment—the founding moment—in remains a matter of great curiosity and American history. It was a tumultuous time speculation among historians. This section draws marked by war (the American Revolutionary War upon the work of John Witte, Mark Noll, Gordon lasted from 1776 to 1783), political trial and error Wood and other historians whose excellent (each colony drafted a state constitution during accounts of this period have shaped current this time, and the first attempt at national thinking about the American founding. Four sub- government—the Articles of Confederation, sections follow, describing in turn the context of ratified in 1781—was abandoned after just eight the “founding moment,” the logic of religious years), and through it all, much debate about the establishment, the principles and principal form of government best suited to a free people. supporters of religious disestablishment, and the The decision to create a secular government to structure of the federal government created by the represent a religious people was undertaken in United States Constitution. this unique context, and its full impact cannot be understood without taking that context into account. Indeed the precise confluence of events and ideas that led to the ratification of the 2
3. The Founding Moment ought to be Free and Independent States... And for the support of this Declaration, with a firm reliance on the On July 4, 1776 representatives of thirteen British Protection of Divine Providence, we mutually pledge to colonies in North America published the each other our Lives, our Fortunes and our sacred Declaration of Independence, an open letter to the Honor. world stating their reasons for breaking the American ties of allegiance to King George V. Its Although they do not offer a detailed theory of opening paragraphs, written primarily by Thomas church and state, much less codify it into law, Jefferson, contain the stirring language that has these passages do imply a certain view of the inspired oppressed peoples for more than two relationship between religion and government. centuries: According to this view, God is to be acknowledged as the creator of humankind and source of We hold these truths to be self-evident, that all men are “inalienable” rights; but government is properly created equal, that they are endowed by their Creator understood as a human, not divine, institution with certain unalienable Rights, that among these are whose authority and power is derived from Life, Liberty, and the pursuit of Happiness. That to citizens themselves, not from God. This concept is secure these rights, Governments are instituted among known as “popular sovereignty,” which President Men, deriving their just powers from the consent of the Abraham Lincoln would famously describe nearly governed. That whenever any Form of Government a hundred years later as “Government of the becomes destructive of these ends, it is the Right of the people, by the people and for the people.” People to alter or to abolish it, and to institute new Government, laying its foundation on such principles The Declaration of Independence is highly and organizing its powers in such form, as to them shall esteemed in American culture not merely as the seem most likely to effect their Safety and Happiness. document that marked the United States’ independence as a nation, but also as a succinct The Declaration argued that human rights were statement of the founding values of this country. given by God, but that they must be protected by a As a result July 4 is celebrated across the country government whose powers are derived from the every year as Independence Day. There is another consent of the governed, not from royal lineage or historic date, however, that arguably overshadows divine sanction. In like fashion—with an appeal to even July 4 in importance to this nation, despite the heavens but grounded in the authority of the fact that few Americans know what happened citizens themselves—the Declaration stated its on December 15, 1791. On that day the Bill of conclusion: Rights was ratified and became part of the United States Constitution, giving American citizens the We, therefore, the Representatives of the united States most extensive guarantees of liberty the world had of America, in General Congress, Assembled, appealing ever seen. If the Declaration of Independence to the Supreme Judge of the world for the rectitude of signaled the founding of the new nation upon our intentions, do, in the Name, and by Authority of the grand ideals of freedom, the Bill of Rights gave good People of these Colonies, solemnly publish and power to that promise. It guaranteed the rights to declare, That these United Colonies are, and of Right religious freedom, free speech and free 3
4. association; protections against self-incrimination Still, understanding the competing interests and and unlawful search and seizure; guarantees of ideas of the founding moment is critical in public trial, legal counsel and the “due process of appreciating the impact of the fateful decision to law”; and the extraordinary recognition that disestablish religion by creating a secular citizens have many other powers and rights not constitution. enumerated in the Constitution. Established Religion Of the ten constitutional amendments that comprise the Bill of Rights, the first was the most As the Founding Fathers contemplated the proper novel. It reads, in its entirety, “Congress shall relationship between church and state in the make no law respecting an establishment of emerging United States, they were aware of a religion, nor prohibiting the free exercise thereof; range of options before them. (The Founding or abridging the freedom of speech, or of the press; Fathers, also called the Founders or Framers, are or the right of the people peaceably to assemble, a loosely defined group of political leaders who and to petition the Government for a redress of opposed the British during the American grievances.” The first sixteen words, known as the Revolutionary War and participated in the religion clauses, provided the legal framework for drafting of the Declaration of Independence or the religious freedom in this country by preventing United States Constitution.) Religious the new government from establishing a state establishment had been the norm for Western religion, and by protecting the right of citizens to governments since the fourth century, when the adhere to any religion they chose. In so doing, the Roman Emperor Constantine declared aptly named First Amendment represented a Christianity to be the official religion of the revolution in the relationship between religion Roman Empire. But there were limited historical and government. precedents in Europe for the protection of religious freedom. In 1579, for example, a This revolution is best understood as an ongoing confederacy of seven northern Dutch provinces process centered around a particular historical had declared their region to be a haven for “moment” rather than a transformation that religious freedom, in response to persecution occurred on one or two dates—even dates as from the Spanish Monarch who ruled the important as July 4, 1776 and December 15, 1791. Netherlands. The Union of Utrecht, as the new The theological and philosophical principles government was known, drew dissenting religious behind religious disestablishment have deep roots groups from all over Europe, including the in the Western tradition, and indeed were codified Puritans, many of whom would later settle the into law in several American colonies more than American colonies of Massachusetts Bay and a century before the First Amendment was Plymouth. written. Conversely (for reasons this paper will soon explain), the First Amendment did not attain Religious establishment was the norm in the its present importance in American law and American colonies, although their unusual culture until the 1940s, one hundred and fifty religious diversity made toleration of non- years after it was ratified. established churches a practical necessity. That 4
5. practical necessity became a legal necessity with established church in the late seventeenth the passage in 1689 of the Toleration Act, an century, it retained a large measure of religious English law that allowed Protestant dissenters toleration. Political and theological arguments for from the Church of England to publicly practice religious establishment were thus quite familiar their faith. (The Toleration Act was not exactly a to the Founders. model of generosity in twenty-first century terms—Catholic, Jewish, Muslim and other non- The traditional logic of religious establishment Protestant forms of worship could still be banned held that tethering church and state allowed each under the law—but it did provide limited rights powerful institution to reinforce the other. An for a large group of Protestant Christians.) In a established church can reinforce government formal sense all colonists owed allegiance to both authority by lending some measure of its divine the English state and the Church of England legitimacy to civil laws and officials, and by because by 1776 each colony operated under a helping to shape virtuous and law-abiding royal charter that made the king (who was also subjects or citizens. The state generally reinforces head of the Church of England) their sovereign the established church by promoting the truth of ruler. But in practice the colonial charters its teachings, although this can be done in direct manifested several different models of church- or indirect ways: suppressing alternate religious state relations. A single established church, the practices, compelling attendance at worship Church of England, was the norm in the southern services, providing financial assistance for colonies, whereas several northeastern colonies ministerial salaries and church buildings, or authorized a multiple establishment of religion providing political status for religious leaders. in which local communities determined which Protestant denominations would receive the During the American founding period (1776- public funds set aside for religion. (Most of these 1791), when citizens and their leaders debated towns selected the Congregationalist churches whether the new national government should founded by the Puritans.) Rhode Island rejected establish a religion, the most influential religious establishment entirely, heeding its arguments for establishment were rooted in founder Roger Williams’ call for a “wall of Puritan theology and/or the political philosophy of separation” between the pure “garden” of religion civic republicanism. and the “wilderness” of worldly affairs. As a result, it became a haven for religious dissenters like Puritan Theology Williams, who had been exiled in 1636 from neighboring Massachusetts because his Baptist Puritans (later known in the United States as views did not comport with Puritan theology. Congregationalists) were dissenting members of Separation of church and state also prevailed in the Church of England who wanted to purify what Pennsylvania, which was founded by a member of they believed to be the corruptions of the church’s a pacifist Christian denomination known as the teachings. They were among the earliest colonists, Quakers. Maryland was founded in part as an and at the time of the Revolution they remained a experiment in Protestant-Catholic coexistence, majority in Massachusetts and Connecticut. Heirs and though the Church of England became its to the Calvinist tradition, Puritans believed that 5
6. church and state were both ordained by God, but to and encourage the nation’s Christian heritage serve separate ends; they should thus remain while tolerating religious diversity of even non- distinct but still “close and compact” with one Christians. another. Based on this theological conception of church and state, the Puritans instituted a form of Civic Republicanism religious establishment that would maintain institutional separation while still allowing In broad terms, civic republicanism is a set of church and state to assist one another in their beliefs linking the practice of virtue with the pursuits. presence of freedom and the common good of society. Republicanism has an ancient genealogy, Notably, the Puritans enforced an institutional beginning in the classical Greek city-states, and separation that was in many ways more strict than forking and branching through the Middle Ages, the one currently employed in the United States. Renaissance, and Enlightenment, through to the They prohibited religious leaders from holding present day. Civic republicans in the American political office, censuring political officials or founding period believed that free governments— serving on juries, just as they forbade political meaning those based upon the consent of the officials from serving religious functions, holding governed rather than the divine or patriarchal religious office, or censuring religious leaders. right of a monarch—are quite vulnerable to Like it is today, marriage was regulated by civil, not corruption and cannot depend upon force or fear religious, law. But the Puritans also allowed more to make their citizens act in ways that benefit interaction between church and state—they were society. Rather, free governments require citizens more “accommodating,” in current parlance— who are otherwise inclined to act for the common than present law would permit. Government good; virtue is the word used to describe this officials collected special tithes and taxes to inclination, and religious belief is the most support the religious activities of Congregational common and effective source of virtue. Therefore, churches; state funds were used to build and from the civic republican perspective, religion was improve religious buildings; and churches served essential to the maintenance of a free country. as the central meeting place and social service organization in the local community. This theme was often stated by two of the most influential Founding Fathers, John Adams and The Puritan model of close and compact relations George Washington. John Adams drafted the between the church and state—or more precisely, Massachusetts state constitution that allowed churches and state, since by the time of the multiple religious establishments and served as a Revolution, Massachusetts and Connecticut diplomat to France and England in the early years allowed residents to specify which Protestant of American independence before becoming its church their taxes would support—provided an second president. Washington commanded the example of the establishment of a specific American armies that won the Revolutionary religious denomination. Civic republicans, War, chaired the Continental Congress that wrote however, argued for a more diffuse form of the Declaration of Independence, and later served religious establishment, one that would recognize as the nation’s first president. His most famous 6
7. speech, delivered just before he left office in 1796, religions could provide sufficient guarantees of put the matter succinctly: “Of all the dispositions the liberty of conscience. This opinion might have and habits which lead to political prosperity,” he prevailed and led to the establishment of religion said, “religion and morality are indispensable in the American Constitution were it not for the supports.” He couched his message as warning: principled and persuasive objections drawn from “Let us with caution indulge the supposition that evangelical theology and liberal Enlightenment morality can be maintained without religion. . . . philosophy. Reason and experience both forbid us to expect that national morality can prevail in exclusion of Evangelical Theology religious principle.” Washington, like many other civic republicans, refers here to religion only in a The term “evangelical” has a complicated and generic way, not to any specific creed or sect, contested history, but in the seventeenth and Christian or otherwise, and he is silent on eighteenth centuries it described a general religion’s transcendent purposes. His focus rather characteristic of religious groups including the is on the important earthly role religion can play, Baptists, Anabaptists, Methodists, and many as a source of the moral principles and behavior others. (For more information about these groups necessary to sustain popular democratic and their beliefs, see the companion paper “An institutions. Introduction to Christian Theology.”) Christian evangelicals placed special importance on the Puritan theology and civic republican political voluntaristic component of faith: because God is philosophy shared the belief that a common the sole creator and governor of human religion can unite a people through shared conscience, only voluntary submission to and experience in common practices and beliefs. But support of religion is genuine. Therefore any what single religion could unite all Americans? coercion in this process from church or state is Dynamic patterns of religious immigration and illegitimate. This theological rejection of coercion conversion had already made even Christianity in matters of conscience had important political too diverse to serve as a national religion, because consequences. Religious establishment no single interpretation of its principles or constituted a clear and direct attempt to coerce practices could find agreement among the people. religious belief and therefore must be rejected. Freedom of conscience, religious liberty and the Religious Disestablishment separation of church and state were therefore tied together. According to these ideas, the By the time of the founding period, liberty of establishment of religion actually weakens conscience was widely accepted by Americans as a religion rather than strengthening it, and if a core right of human beings that should not be plurality of religions exists in society, it is for God, abridged by government. Recognizing this liberty not the state, to decide which will flourish. did not necessarily require, however, the separation of church and state; many people Of course it was also quite important (even if it believed that a state which established a religion was not decisive) that no single evangelical group (or religions) but also tolerated non-established was large enough in the eighteenth century to 7
8. garner support for establishing its church. Jefferson and Madison were the primary authors Evangelicals such as Roger Williams, who of the Declaration of Independence and the championed the separation of church and state as Constitution, respectively, while Paine and the founder of Rhode Island, had been present in Franklin were key advocates for national the earliest years of the American colonies. But it independence. was not until the Great Awakening—a series of large religious revivals held in the colonies from Among the Enlightenment philosophers known roughly 1720 to 1780—that evangelicals came into to Americans at the time of the founding, John cultural and political prominence. By the middle Locke (1632-1704) was particularly influential. of the nineteenth century, evangelicals would Locke argued in his Letter on Toleration (1689) and dominate American religious and cultural life; Second Treatise on Government (1690) that had they held commensurate political influence government and religion have separate ends. during the founding period, they might have been Government exists only to secure the things that tempted to seek the establishment of some form can be enjoyed on earth, namely life, liberty, and of evangelical Christianity. This possibility is quite property; religion has the transcendent end of remote, however, given how deeply rooted the saving souls. Religion and politics properly employ theological commitment to separation of church different means to achieve these ends: the former and state had already become. uses persuasion, the latter force. Because no physical force or threat of force can truly change Liberal Enlightenment Philosophy someone’s inner convictions, government should be precluded from trying to do so; the state has no If evangelical theology provided a critical religious legitimate authority over the realm of human justification for disestablishment, Enlightenment conscience. liberalism would provide the key philosophical justification. The Enlightenment was a period of Despite the obvious support his argument gives intellectual fervent in Europe (and to some degree for disestablishment, Locke did not take his the American colonies and states) during the position that far; he supported religious toleration seventeenth and eighteenth centuries that but not disestablishment. In fact, he argued for emphasized the importance of reason (as opposed tolerance of Protestantism alone; Catholics and primarily to religion) as the basis of all knowledge atheists were too dangerous, in his opinion, in philosophy, ethics, politics, science, and other because their loyalty to the King was suspect. areas of human existence. Among its primary Nevertheless, Locke’s views on the liberty of political and moral philosophers were John Locke, conscience were unusually permissive for the Adam Smith, and David Hume in the British period, contrasting sharply with those of Thomas Isles; the Baron de Montesquieu and Marquis de Hobbes (1588 – 1679), an English philosopher Condorcet in France; and Thomas Jefferson, whose views on the absolute power of the king Thomas Paine, James Madison and Benjamin over religion were influential at the time. Franklin in the American colonies. The Americans among this group were of singular Thomas Jefferson echoed Locke’s argument that importance to the founding of the United States: the right to free conscience was rooted in the 8
9. futility of coercing human opinion, and that the Most historians today agree that the institution of protection of conscience was essential for a secular government was not a foregone maintaining civil peace. A prominent and conclusion during the Revolution, and that powerful supporter of religious disestablishment, disestablishment was an enormous risk requiring both in the federal government and in his home both foresight and conviction. The “founding state of Virginia, Jefferson supported church-state moment” was indeed a surprisingly brief and separation primarily out of a concern for tenuous period in which a relatively small group protecting the individual’s right of conscience. For of statesmen influenced by Enlightenment him, “building a wall of separation between philosophy shared a common enterprise—the Church and State” was to be undertaken on disestablishment of religion—with a surging “behalf of the rights of conscience.” Jefferson population of religious enthusiasts who explicitly considered religion to be a private matter, outside rejected the Enlightenment’s reliance upon the realm of government authority. reason. By 1830 evangelicalism and populism had become the dominant trends in American public The writings of Jefferson’s fellow Virginian James life, and Enlightenment philosophy had largely Madison also show the influence of disappeared from public prominence. Yet during Enlightenment thought. His Memorial and these critical years, evangelicals and Remonstrance against Religious Assessments, written Enlightenment liberals were able to compromise in 1785, famously defended separation of church in other areas with those who drew upon Puritan and state. Madison began by describing the right theology and civic republican political philosophy, of conscience in words that resonate with Locke: and the resulting Constitution contained a “The Religion then of every man must be left to unique combination of mechanisms to sustain the conviction and conscience of every man; and it religious freedom. is the right of every man to exercise it as these may dictate.” In contrast to Europe, where “torrents of The United States Constitution blood have been spilt . . . by vain attempts of the secular arm, to extinguish religious discord, by The United States Constitution was designed to proscribing all difference in religious opinion,” promote the rule of law through the separation of American civil society enjoys moderation and powers into three parts or branches. A directly harmony because the care of the soul is treated as elected bicameral legislature known as the a private matter. Religion also benefits from Congress is charged with writing laws; its upper church-state separation, for history shows that house is the Senate, the lower house is the House “ecclesiastical establishments, instead of of Representatives. The executive branch enforces maintaining the purity and efficacy of religion, these laws; its head is the President, who is elected have had a contrary operation,” causing “pride by members of the Electoral College, whose votes and indolence in the clergy, ignorance and are cast based on the popular votes of all citizens. servility in the laity, in both, superstition, bigotry The third branch of government is the judiciary, and persecution.” charged with interpreting the laws passed by the legislature; its highest court is the Supreme Court, comprised of nine members (Justices) who 9
10. are granted lifetime appointments in order to an American in both a legal and philosophical insulate them from short-term political influence. sense. Citizenship was granted—or denied—by the various states until after the Civil War (1861- All three branches of government are said to be 1865), when the Constitution was amended to co-equal, and each is given special powers over the make citizenship a federal status that carried all others. Congress has the sole power to levy taxes rights and privileges (including the due process of and authorize spending by the executive and law) guaranteed by the federal Constitution. judicial branches, and it can require members of both branches to appear before its committees to The importance of this constitutional testify on matters of national importance. The amendment—the Fourteenth—cannot be President is given the power to appoint (with the overstated in a discussion of religious Senate’s approval) members of the federal disestablishment. Recall that the First judiciary, and in addition to nearly complete Amendment, in part, forbids Congress from authority over foreign policy, he (or someday she) making a law “respecting an establishment” of has a measure of latitude to enforce federal law in religion or “prohibiting the free exercise thereof.” the manner befitting his policy goals. Finally, the On their face these provisions apply only to the judiciary is given the sole power to interpret the federal Congress, which is thus prohibited from Constitution (including its amendments), and either establishing a federal religion or under the doctrine of “judicial review” it has long interfering with the existing established religions held the power to invalidate any laws it deems in some states. Indeed, as noted above, several contrary to its interpretation. This system of states maintained religious establishments well “checks and balances” was designed by the into the nineteenth century, with Massachusetts Framers of the Constitution to reduce abuses of becoming the last to eliminate public support for power, and although such abuses do arise, the religion in 1833. As a result, state constitutions system has worked well enough that it has been were much more important determinants of mimicked by a number of countries around the religious freedom than the federal constitution. world. This situation was largely reversed in the 1940s when the Supreme Court began to interpret the The American political system is further balanced Fourteenth Amendment (which had been ratified by its federal structure: each of the fifty states in 1868) as a guarantee to all persons of the rights comprising the United States has its own enumerated in the federal Constitution and its government (with three co-equal branches) that amendments. Henceforth the First Amendment’s retains a large measure of autonomy in the Establishment Clause would apply to the regulation of local issues. For the first hundred executive, judicial and legislative branches of all years of the nation’s history, the states retained levels of government; and the Free Exercise even more power (vis-à-vis the federal Clause would apply to all persons living in the government) than they presently do. At the United States. This was a controversial legal founding, states were considered the primary interpretation at the time, but today it is rarely locus of citizenship and identity; being a challenged. One upshot of this shift has been a Virginian, for example, meant more than being dramatic increase in the consequences—and 10
11. therefore public awareness—of Supreme Court when adjudicating cases. This institutional decisions regarding religious freedom. Simply resistance to change means that most of the put, the Supreme Court matters more today to Court’s decisions entail applying previously most citizens than it did in its first one hundred agreed-upon principles to the case at hand; fifty years of existence. reversals or reformulations of these principles are less common, and thus noteworthy. In the past One other aspect of the Supreme Court, its twenty years, however, the Supreme Court has adherence to precedent, is important to set forth struggled to find a consistent principle by which it in advance of a discussion of its major rulings on can adjudicate the religion clauses, and thus it has religious freedom. To encourage continuity and reversed itself in several important areas. The the principled application of legal theory, the second section discusses this search for a legal Court employs the principle of stare decisis (a Latin principle of religious freedom by outlining the phrase meaning “to stand by things decided”) Court’s responses to a wide array of issues. THE SHIFTING BOUNDARIES OF CHURCH AND STATE Understanding the distinction between the two hand, the Establishment Clause is focused on the religion clauses in the First Amendment is actions of government institutions and employees. essential to comprehending the legal boundaries If, for example, a public school teacher tells a of religious freedom in the United States. They student in class that Christianity is the only true are written in just sixteen pithy words: “Congress religion, this teacher has violated the shall make no law respecting an establishment of Establishment Clause because the government religion, or prohibiting the free exercise (which the teacher represents when acting in his thereof….” Together, these clauses or her capacity as a government employee) is institutionalize the American conception of prohibited from endorsing religious beliefs or religious freedom by prohibiting the government practices. On the other hand, the Free Exercise from discriminating on the basis of religious Clause is focused on private citizens and their belief or practice. The Establishment Clause religious associations. For example, the prevents the government from discriminating in government would violate the free exercise rights favor of religious beliefs or practices by adopting or of Muslims if it sought to discourage the practice endorsing them through its laws or the actions of of Islam, whether by regulating licensure for its employees, while the Free Exercise Clause imams, creating especially strict zoning laws for prevents the government from discriminating mosques, refusing to allow Muslim religious against the religious beliefs or practices of practices in prisons, or by any other means. individuals and organizations. In fact, the two religion clauses are in constant While the religion clauses are closely related as tension with one another: an expansive anti-discrimination provisions, they protect interpretation of one clause often requires a religious freedom in different ways. On the one restrained interpretation of the other. Those who 11
12. seek to give the broadest protection possible to the Challenges to the Free Exercise of Religion free exercise of religion are keen to ensure that the government not disfavor (discriminate against) Like the other rights enumerated in the religious believers of any sort; they often Constitution, the right to the free exercise of encourage the state to specially accommodate religion is not absolute, at least as it applies to religious believers whenever possible. This religious practices. While American citizens enjoy “accommodationist” position is rejected by those absolute liberty of conscience (meaning that they who are especially adamant that the government are legally entitled to believe or reject any idea, not favor one or more religions, meaning they religious or otherwise, that they encounter), it support an expansive interpretation of the would be impossible for them to have equal rights Establishment Clause. Sometimes these to act upon those ideas without being subject to opponents of accommodationism argue that the some sort of regulation. Some of these actions state must be neutral in its posture toward would invariably conflict with the goals or actions religion, favoring neither religion nor of others, and the freedom of one or the other nonreligion as such, nor one religion over other person would therefore be restricted. (For more religions; this position is known as “neutrality” in on the distinction between religious belief and this context. Other opponents of practice, and on the diversity of religious practices accommodationism, however, are known as in the United States, please see the companion “separationists” because they seek to separate paper “Religious Practice in the United States.”) religion from the state as much as possible, even if Thus in principle the laws and regulations this means favoring nonreligion over religion. protecting the free exercise of religion are intended to grant an individual the most It has been widely noted that the Supreme Court’s expansive set of liberties compatible with the interpretation of the Establishment Clause has same liberties granted to all others. shifted dramatically in the last half-century from a strict separationist position in the 1960s and But this concept of equal treatment under the law 1970s to an accommodationist stance in the last is controversial, because it sometimes fails to take two decades; free exercise jurisprudence has taken into account the special importance of some a more complex and meandering path since the practices to some religious groups. Do some 1970s. The remainder of this major section is religious practices deserve special exemptions given to an extended discussion of these legal from otherwise generally applicable laws? If so, trends as they relate first to free exercise cases, how does the government decide which then to Establishment Clause cases. (A note on exemptions are valid or desirable? Since the nomenclature: court cases in the United States Constitution explicitly singles out religion for are identified by the names of the plaintiffs and special protection—there is no explicit protection defendants, separated by the letter “v” for versus, for secular beliefs or practices—does that mean meaning “against.” Often, a government entity is religion can be favored over non-religion? These a party to the case as either defendant or plaintiff, are some of the most pressing questions the as in Reynolds v. United States.) Supreme Court has addressed in its free exercise cases, the most important of which may be 12
13. clustered under two categories: restrictions on Jehovah’s Witnesses, a Christian denomination particular religious practices; and religiously known for its door-to-door proselytization. The motivated rejections of civic obligations. town of New Haven, Connecticut had passed a law requiring that all religious groups register with Restrictions on Religious Practices the town before soliciting residents at their homes. Jesse Cantwell and his son were arrested Perhaps the most straightforward examples of for disturbing the peace by soliciting without a free exercise cases involve situations where a permit, and they challenged the law. The person feels compelled by her religion to engage Supreme Court ruled that the registration in a certain practice that is illegal or otherwise requirements were unconstitutional because they regulated by the government. Marriage, unfairly disadvantaged religious believers, and evangelism, sabbatarian observance, ritual drug because they required government officials to use and religious dress codes are among the many determine which messages were religious and religious practices that have received hearings in which were not. This case, Cantwell v. Connecticut, the Supreme Court. represented the first time the Court used the First and Fourteenth Amendments together to In the Court’s first application of the Free Exercise invalidate a state law; thanks to the Court’s Clause (in Reynolds v. United States, 1878), the reliance on precedent, the federal Free Exercise justices upheld a federal law banning the practice Clause would henceforth apply to all state laws. of polygamous marriage, despite the fact that the defendant believed—and indeed his church The Supreme Court set an important new leaders taught—that his Mormon faith accommodationist standard for evaluating free encouraged him to take multiple wives. exercise cases in 1963, when it upheld the right of (Mormons no longer officially support polygamy; Adeil Sherbert, a member of the Seventh-Day for more about their beliefs and practices, see the Adventist Church, to refuse to work on Saturday, companion paper “Religious Pluralism in the the Sabbath Day of her faith. The state of South United States.”) In refusing to grant an exemption Carolina offered unemployment benefits only to to the law, the Court argued that while religious persons who actively seek employment, and since belief is absolutely protected—Mr. Reynolds could she would not work on Saturdays the state did not legally believe, and even advocate in public, the consider her to be actively looking for work. In principle of plural marriage—there is no ruling for Ms. Sherbert, the Supreme Court corresponding absolute right to act on those announced a new test it would apply to future beliefs. When the general welfare or common such cases: if a law creates a “substantial burden” good of the society is jeopardized by a practice, as upon a person’s religious practice, it must be legislators claimed about polygamy when writing justified by a “compelling state interest” in this law, then that practice is not protected by the applying the law with equal force. Absent such Free Exercise Clause. interest, the state must accommodate the religious practice by exempting it from the law in This general principle was refined in a 1940 case question. involving religious evangelism by members of the 13
14. For the next thirty years free exercise cases often ideas is an important part of educating students to focused upon subtle definitions of what become citizens in a diverse society. constituted a “substantial burden” on a person’s religious practice, or what makes a state’s interest Two important free exercise cases in the late “compelling” enough to warrant universal twentieth century illustrate the checks and application. In 1972 (in Wisconsin v. Yoder), for balances at work between Congress and the example, the Court ruled that the Old Order Supreme Court. In 1986 the Supreme Court Amish—a Christian denomination that seeks to refused to grant a Jewish military chaplain an separate itself from mainstream culture out of a exemption from the military dress code so he religious desire to live simply and peaceably—in could wear a yarmulke (a skullcap worn indoors by Wisconsin be granted a partial exemption from many Jews) with his uniform. The decision compulsory schooling laws that required (Goldman v. Weinburger) was unpopular among attendance to the age of 16. Amish parents in citizens and their representatives in Congress, so these communities generally removed their the next year Congress passed a law specifically children from public school at age 13 out of a belief allowing chaplains to wear religious that further education was unnecessary for the paraphernalia so long as it does not interfere with Amish way of life and would expose children to their duties nor detract from the uniformity worldly temptations. Despite the state’s argument sought by the military dress code. Because the that universal education is essential to the Courts interpret the laws but do not write them, maintenance of a democracy, the Court ruled that Congress’ new law prevailed. the extra three years of education constituted a substantial burden on the Amish’s religious way The second example reveals how complex this of life, and that, conversely, the state did not have a give-and-take between Congress and the compelling interest to require those extra three Supreme Court can become. In a landmark 1990 years in the face of the burdens it imposed upon case (Employment Division v. Smith) regarding drug the Amish. laws, the Supreme Court refused to mandate an exemption for a Native American man who Interestingly, a lower court ruling on a related ingested peyote—an hallucinogenic drug that was educational issue in 1987 took an opposite illegal to consume under Oregon state law—as approach. In the state of Tennessee a family of part of a religious ceremony. He had been fired Christian fundamentalists objected to the books from his job as a result of this drug use, and the their children used in the local public school, state had refused to grant him unemployment claiming that they inculcated false notions of benefits. The Supreme Court sided with the state gender equality, religious toleration and other in this case, declaring that it (the Court) would no principles contrary to their beliefs. They asked the longer invalidate state laws which only school to allow their children to read different incidentally burdened religion; so long as the laws books that did not violate their religious beliefs, under review were not written with the purpose of but the school ultimately declined. A federal impeding religious belief or practice, they would appeals court (in Mozert v. Hawkins) upheld the not be struck down as unconstitutional. school’s decision, arguing that exposure to such 14
15. As a result of the Smith case, religious minorities Religiously Motivated Rejections of Civic Obligations lost an important protection against abuse by the majority; they would henceforth need to seek The primary occasions in which citizens have redress in the legislatures, where by definition rejected, for religious reasons, an otherwise they lack the obvious support of the majority of binding civic obligation involve the expressions of representatives. Responding to the public outcry civic loyalty (including oaths of office and the about this decision, Congress passed the Religious Pledge of Allegiance) and the call to military Freedom Restoration Act (RFRA) in 1993, which service. The Constitution explicitly allows those directed state and federal governments to who refuse to take oaths to “affirm” (rather than accommodate religious minorities who are swear) their loyalty to the Constitution when substantially burdened by a general law. Four taking office, but in the early twentieth century years later, however, the Supreme Court most of the nation’s schoolchildren were required overturned parts of the RFRA, ruling that it to stand, salute and recite the Pledge of Allegiance unconstitutionally forced states to enforce federal every day. Until 1954, when it was altered to laws. In the latest installment of this saga, the include the words “under God,” the Pledge read as Supreme Court again ruled on a challenge to follows: “I pledge allegiance to the United States RFRA, this time (in Gonzales v. O Centro Espirita of America, and to the Republic for which it Beneficiente Uniao Do Vegetal, 2006) upholding its stands, one nation indivisible, with liberty and applicability to federal law. justice for all.” In several cases in the 1940s, the Supreme Court first upheld the ability of schools While at times the details of these cases can numb to require recitation of the pledge; then it reversed the mind with their intricacy, they are itself three years later, arguing that the First nevertheless critical to the protection of religious Amendment protects persons who conscientiously freedom for religious minorities across the oppose such rituals. country. The passage of RFRA, for example, has led to legal victories for a girl who was initially not Conscientious objections to military service allowed to wear her hijab (headscarf) to public represent another interesting component of free school in Oklahoma, to a Muslim firefighter in exercise jurisprudence. Congress and the Philadelphia who was initially not allowed to wear Supreme Court have long granted exemptions a beard (for safety reasons), and to Muslim women from military service to those who profess an in several (though not all) states who asked to be abiding belief in pacifism for religious reasons. photographed in their niqab (veil) for their drivers Over the course of the twentieth century, the license photographs. In both cases the Court expanded this exemption to include pacifists accommodationist impulse derived from who hold their views for nonreligious moral and Congress, not the Court, which continues to apply ethical reasons, but insisted that the objection its position of neutrality to most cases. must demonstrably include participation in all wars, not merely a particular war. Thus a person who opposes a given war as unjust, but believes it morally permissible to serve in a just war, will not 15
16. be granted conscientious objector status in any The case law in religious establishment is war. voluminous and complicated, even impenetrable at times. Nevertheless in broad strokes, three The principle of neutrality that the Court outlined clusters of Establishment Clause cases can be in 1990 remains the controlling precedent for identified: those dealing with religion and free exercise cases today. This approach requires education; religious displays on public property; only that the legislature avoid writing laws and government-sponsored religious messages. purposely designed to hinder the practice of a This section takes up each cluster of cases in turn. particular religion; it makes no affirmative requirement upon the legislature to write Religion and Education exemptions into the law for the sake of religious believers, nor (in and of itself) does it forbid the Almost ninety percent of America’s fifty-three legislature from making such exemptions. To million school-aged children attend primary or clarify the extent to which the legislature may (not secondary schools funded by the government. whether it must) recognize popular faith in the Though only a quarter of American voters law and in public life, the Establishment Clause currently have school-aged children, everyone is must be interpreted. connected in some way to the public school system: taxpayers finance it, employers hire its Religious Establishment and the Separation of graduates, and more importantly, its effectiveness Church and State is widely understood to be a key measure of social and economic justice. Schools are sometimes Although there is little risk in the foreseeable expected to do nearly everything for society: raise future that federal or state governments will children out of poverty through education and job explicitly establish one sect or religion as an training; shape virtuous citizens; teach the skills official religion, there are myriad subtle ways in of critical thinking and encourage autonomy; and which the government supports religious groups improve American workers’ competitiveness in or practices, both directly and indirectly. Churches science and technology fields. are exempted from income taxation; clergy are employed by the government in prisons, the Because public schools are government entities, military, and both chambers of Congress; and schoolteachers are legally considered to be agents government funds are given to religiously of the state. This means that teachers speak for affiliated hospitals, universities, primary and the government when they enter a primary or secondary schools, and social service secondary school classroom. Since the organizations. The key to assessing whether a Establishment Clause forbids the government particular instance represents an from endorsing a particular religious viewpoint, unconstitutional establishment of religion is not the same applies to public school teachers, whether a religious person or group receives administrators, and governance boards (when some financial benefit from the government, but they are acting in their official capacity). This whether that benefit is given (or withheld) because restriction has important effects on everything the person or group is religious. from the structure of education financing (e.g., 16
17. can the government pay for religious education?) it had received so many qualifications and caveats to the religious activities in which students that the law was nearly impossible to understand. engage (e.g., prayer, Bible study groups, evangelizing) to the curriculum students are In the early 1980s the Court systematically began taught (e.g., can creationism or intelligent design to expand the permissible areas of interaction theories be taught in science classes?). governed by the Establishment Clause. Reversing a number of earlier decisions, the Court has since On numerous occasions in the last hundred years, ruled that proper interpretation of the the Supreme Court has considered the Establishment Clause allows states, for example, government’s proper relation to religious to offer parents tuition vouchers to pay for education, with decidedly mixed results. Before religious education in lieu of public schooling 1971 the Court generally took an (2002); to purchase or loan computers and other accommodationist stance toward the state’s equipment to religious schools (2000); to send involvement with and regulation of religious public school teachers to provide remedial schools, in the sense that it protected religious education for students at religious schools (1997); schools from excessive government interference to pay for sign language interpreters and other and allowed public aid to flow to such schools services to students at parochial schools and under certain circumstances. The Court first colleges (1993); and to offer tax deductions to applied the Establishment Clause to the states in parents who pay private school tuition and other 1947 in a case (Everson v. Board of Education) that educational expenses (1983). In each case the state provided a crucial distinction between direct program in question was deemed to provide a government aid to religious schools (which was benefit or service that was neutral with respect to prohibited) and indirect aid given to parents to use religion, because it was provided to a broad class of according to their own choice (which was allowed). citizens defined without reference to religion. In 1971 (in Lemon v. Kurtzman) the Court took a Though in effect these laws provide benefits to decisive turn to a separationist approach, arguing religious persons or institutions—at times, almost that a law is valid only if it has “a secular exclusively so—the court’s accommodationist legislative purpose,” a “primary effect” that majority found that their intent was not neither advances nor inhibits religion, and does discriminatory, and thus the benefits passed not foster “an excessive government constitutional muster. entanglement with religion.” These criteria, later known collectively as the Lemon test, was used to When students and teachers (or other adults) join strike down several state laws that supplemented together in a religious practice on school grounds, the salaries of teachers in religious schools; the the free exercise and Establishment Clauses both “cumulative effect” of such programs, the Court come into play. As a general rule, the Free held, was an excessive entanglement of Exercise Clause prevents the government from government and religion. The Lemon test was unnecessarily restricting the individual religious routinely used for nearly thirty years to adjudicate practice of private citizens, including students Establishment Clause cases, but by the mid-1980s while at schools. But teachers and school administrators represent the state when they are 17
18. working in their official capacity, and the objectively as part of a secular program of Establishment Clause prohibits the state from education, may not be effected consistently with acting to promote one religion over another. By the First Amendment.” The view was reaffirmed this rule, state-sponsored (i.e. teacher-sponsored) by Justice Powell in 1987, and it has never been religious practices constitute a violation of the challenged since that time. First Amendment, but most student-led religious activities do not, so long as they do not disturb the Religious Displays on Public Property school’s regular educational program. Thus the Court outlawed teacher-led prayers in 1962 (in Religious displays on public property are Engel v. Vitale) and teacher-led devotional Bible controversial in the United States insofar as the reading in 1963 (in Abington v. Schempp); in both government (which by definition owns public cases the Court ruled that these common property) is perceived as endorsing or establishing practices were clear examples of the state the religion or religions that the display is promoting a particular form of religion. Later intended to celebrate or invoke. Examples of such rulings of the Court have banned the practice in displays include a crèche or Hanukkah menorah schools of mandatory moments of silence, posting erected in a town square during the winter of the Ten Commandments and other Bible holiday season or a Ten Commandments verses, and the teaching of the biblical creation monument installed outside a state capitol narrative as scientific fact. But it has also held that building. In each instance a relationship—real or religious groups (including Bible clubs) can meet perceived—is created between government and at public schools on equal terms with non- religion; the controversy arises over the exact religious groups; teachers can teach about nature of that relationship, and whether or at religion and the Bible in the classroom if the what point the relationship violates constitutional material is presented in an objective manner; and or theological principles of the separation of students can read the Bible and pray, alone or in church and state. groups, at school as long as the practice is not initiated or led by teachers or administrators. Three kinds of religious displays on public property have generated the most legal Teaching about religion is a particularly controversies since 1980. First, there are controversial issue, but in the very case that government-sponsored celebrations or banned school prayer (Abington School District v. acknowledgements of religious holidays (e.g., Schempp), the Court noted that teaching about Christmas or Hanukkah) with a public display of religion in the public schools was not only religious icons, symbols, or objects (e.g., a nativity permissible but advisable. “It might well be said,” crèche or a menorah). Federal, state and local wrote Justice Tom Clark for the Court, that “one’s governments in the United States celebrate a education is not complete without a study of wide range of holidays during the year, including comparative religion or the history of religion and some of religious origin such as Christmas and its relationship to the advancement of civilization. Hanukkah. These winter holidays are often . . . Nothing we have said here indicates that such commemorated by the installation of festive study of the Bible or of religion, when presented displays in parks, capitols, town halls or 18
19. courthouses—public places of high visibility and religion. Such was the case when the white unfettered access. In the 1980s a number of these supremacist organization known as the Ku Klux public holiday displays were challenged in the Klan (KKK) sought to construct an unattended courts as unconstitutional establishments of cross on the plaza around the Ohio state house in religion; three such cases were argued before the Columbus, known as Capitol Square. State U.S. Supreme Court, which rendered landmark officials rejected the KKK’s application to erect the decisions that continue to serve as the final word cross, arguing that the display would be construed on these issues. The common thread in each case as government endorsement of the organization’s was a close scrutiny of the context in which the hateful and intolerant message. The Supreme display was placed and a concern for whether the Court rejected the Board’s claim, ruling that the particular arrangement would leave a proposed display was private religious speech, fully “reasonable observer” to believe that the protected under the First Amendment’s Free government was endorsing a particular religion. Speech Clause. Because Capitol Square is In these instances, a nativity scene depicting Jesus designated as a traditional public forum, where Christ’s birth was allowed when symbols of the any group may express their views, the Court held secular celebration of Christmas (e.g. Santa that a reasonably informed observer would not see Claus’ mythical reindeer) were also included in the KKK cross as the government’s endorsement the display, but disallowed when it stood alone in a of its message. courthouse stairwell; and a Jewish menorah was allowed when it was displayed alongside a The third kind of contested religious displays Christmas tree and a sign promoting liberty. involve the celebration or acknowledgement of religion’s influence on American political and The second controversial kind of religious displays legal history with the installation of plaques or are those objects or symbols (e.g. a cross) erected monuments inscribed with religious symbols or by private citizens or groups in public places passages. The Ten Commandments, or known as public forums. In the broadest sense, Decalogue, is believed by Jews and Christians to “public property” means the interior or exterior of be a fundamental theological, ethical and legal any property owned by federal, state or local code given by God to Moses (Exodus 20:1-14; governments; this includes public schools, city Deuteronomy 5:6-18). The first four halls, courthouses, and capitol buildings, as well commandments, collectively known as the First as parks, streets, sidewalks, town squares, plazas, Table, concern the relation between believers and and other public spaces. But the Supreme Court God (e.g. You shall have no other gods before me); has recognized some of these places—those that the last six commandments, or Second Table, have been devoted, by long tradition or concern the relations among believers (e.g. You government fiat, to public assembly and debate— shall not steal). As one of the most ancient codes as “public forums” where the state’s right to limit of conduct in the Western world, the Decalogue expressive activity is sharply circumscribed. When has deeply influenced Western conceptions of a place is considered a public forum, the courts are right and wrong, and thus it has also influenced, less likely to consider a religious display on the at least indirectly, the development of Western site to be an establishment or endorsement of law. In 1980 the Supreme Court ruled that public 19
20. schools could not post copies of the Ten expressions in prominent places is Commandments in each room, because the overwhelmingly popular among citizens. posting of this “undeniably sacred text” was a form of religious coercion. Nearly twenty-five years later Another difficult example of government the Court drew upon its decisions regarding involvement in religious practice is the holiday displays to rule on another form of Ten employment of government chaplains by Commandments displays: stone monuments on legislatures, the armed forces, and state prisons. courthouse lawns that depict the Decalogue do not Here again the Supreme Court has allowed such endorse religion if they are placed in secular practices. In the case of prayers at legislative and historical context, for example by the inclusion of judicial sessions, the Court argued that such monuments that display the Declaration of religious rituals are an important American civic Independence. tradition with a longstanding history and are thus acceptable. Government-Sponsored Religious Messages One additional example of government-sponsored There are many other ways in which a religious religious messages was considered by the message is communicated directly or indirectly by Supreme Court in 2006, namely the the government. Religious language and symbols permissibility of government financing of “faith- can be found in the official government motto (“In based” social service providers. Thousands of God We Trust” became the national motto in religious organizations currently provide needed 1956, replacing “E pluribus unum”), national programs like job training and substance abuse anthem (the “Star Spangled Banner” refers to counseling with an emphasis on spiritual as well God in its fourth stanza), pledge (the Pledge of as mental and physical health. The federal Allegiance was amended in 1954 to include the government now allows such organizations to words “under God”), seal and currency (which apply for federal funding on the same terms as contain the national motto). Establishment secular social services organizations, meaning Clause challenges have been brought against that the “pervasively religious” activities of such each of these items (except the national anthem), groups cannot be funded by federal money. The but in every case so far the Court has allowed the programs were challenged by those who argue religious phrases to remain on the grounds that that all activities of such groups are pervasively they have been, in effect, secularized by their religious, and thus the government is establishing ceremonial civic role. This is a controversial a particular religion when it funds any of their argument, but the maintenance of these religious activities. The separation of church and state, and the form of liberal democracy. Church-state freedom of conscience it is intended to protect, are separation is at once simple in concept and widely embraced core principles of the American irredeemably complex in practice. It is both a 20
21. pragmatic strategy for maintaining religious in the United States has been an extraordinary vitality and a principled expression of the belief success, and not just for Protestants: thousands of that theological and political legitimacy are different religious groups now make up the distinct. In a sense the aspiration for legal American religious landscape. In the years ahead neutrality vis-à-vis religion is doomed to failure the contours of religious liberty will continue to because the concept of disestablishment itself shift as compromises are made and cultures are rests upon a distinctively Protestant Christian integrated; this dynamism comprises the essential understanding of religion as something that can strength of “government of the people, by the be equated with faith, then privatized and people, and for the people.” separated from other parts of life. But in another sense, the “lively experiment” of religious liberty FOR FURTHER READING In order to provide an accessible introduction to religion in the United States, this paper has been produced without footnotes and with few direct quotations from secondary literature. It nevertheless reflects the influence of a wide range of scholarly arguments. This annotated bibliography presents a complete list of the texts to which this paper refers, as well as a number of other resources with further information about the topics discussed. Comments following each citation indicate the nature of the text and, where applicable, the extent of the paper’s reliance upon it. Books and Articles Ellis, Richard J. To The Flag: The Unlikely History Of The Pledge Of Allegiance. University Press of Kansas, 2005. Chronicles the origins of and later changes to the Pledge of Allegiance. Gaustad, Edwin S. Roger Williams. Oxford University Press, 2007. Concise biography of an early American champion of church-state separation. Hamburger, Philip. Separation of Church and State. Harvard University Press, 2002. Seminal contemporary work on the history of the concept of “separation of church and state.” Kosman, Barry, and Seymour Lachman. One Nation Under God: Religion in Contemporary American Society. Crown Publishers, 1993. Provides historical overview and statistics on religious belief and practice in the United States. Locke, John. Two Treatises of Government. Peter Laslett, editor. Cambridge University Press, 1989. The Second Treatise was deeply influential in the thought of the American Founders.. Locke, John. A Letter Concerning Toleration. James Tully, editor. Hackett, 1983. Locke’s classic formulation of the freedom of conscience provided a philosophical framework for the concept of disestablishment in the United States. 21
22. Mead, Sidney E. The Lively Experiment: The Shaping of Christianity in America. Harper & Row, 1963. Classic intellectual history of religious freedom in the Founding period. Noll, Mark. America’s God: From Jonathan Edwards to Abraham Lincoln. Oxford University Press, 2005. Seminal recent book on the history of religion in the United States. This paper draws upon Noll’s expansive account of the dynamic relationship between American religious and political thought. Owens, Erik. “Religious Displays on Public Property.” Encyclopedia of Religious Freedom, C. Cookson, ed. Routledge, 2003. Provides analysis of current Establishment Clause law; resource for section on religious displays. Owens, Erik. “Taking the ‘Public’ Out of Our Schools: The Political, Constitutional and Civic Implications of Private School Vouchers.” Journal of Church and State 44:4 (Autumn 2002): 717-747. Analysis of current law on religion and education; used for this paper’s section on the same topic. Perry, Michael J. Religion in Politics: Constitutional and Moral Perspectives. Oxford University Press, 1997. Argues for the proper role of religion in public debate. This paper draws upon Perry’s overview of the nature of the Religion Clauses as anti-discrimination provisions. Wexler, Jay D. “Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the Constitution,” William & Mary Quarterly 43:3 (February 2002): 1159-1263. Keen legal analysis that informed the discussion of religion and public education in this paper. Witte, John, Jr. Religion and the American Constitutional Experiment: Essential Rights and Liberties. Westview Press, 2000. Excellent resource for the legal history of church-state relations in the United States. This paper is broadly informed by Witte’s historical analysis and interpretation of First Amendment jurisprudence. Wood, Gordon. The Creation of the American Republic, 1776–1787. University of North Carolina Press, 1969. Classic historical account of the American founding. Court Cases Abington School District v. Schempp (1963) [Prohibited mandatory Bible reading in public schools.] Agostini v. Felton (1997) [Allowed public school teachers to provide remedial education in religious schools] Cantwell v. Connecticut (1940) Employment Division v. Smith (1990) [Denied exemption from drug laws for peyote used in Native American religious rituals.] Engel v. Vitale (1962) [Prohibited teacher-led prayer in public schools.] Everson v. Board of Education (1947) [Applied the Establishment Clause to the states through the Fourteenth Amendment; allowed public funds spent to bus students to religious schools.] Goldman v. Weinburger (1986) [Denied exemption to Jewish military chaplain who sought to wear a yarmulke with his uniform.] Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006) [Upheld applicability of Religious Freedom Restoration Act to federal law.] Lemon v. Kurtzman (1971) [Source of the Lemon Test used to evaluate challenges to Establishment Clause] Mitchell v. Helms (2000) [Allowed states to provide computers and other equipment to religious schools] 22
23. Mozert v. Hawkins (6th Circuit Court of Appeals, 1987) [Denied exemption to Christian parents who argued that public school textbooks burdened their free exercise of religion.] Mueller v. Allen (1983). [Allowed states to offer tax deductions for private school tuition.] Reynolds v. United States (1878) [Denied a Mormon’s claim that the Free Exercise Clause protected the religious practice of polygamy.] Wisconsin v. Yoder (1972) [Exempted Amish schoolchildren from compulsory attendance laws.] Zelman v. Simmons-Harris (2002) [Allowed states to provide tuition vouchers to pay for religious education] Official Government Offices The White House (Office of the President, executive agencies and departments): www.whitehouse.gov United States Senate: www.senate.gov United States House of Representatives: www.house.gov United States Supreme Court: www.supremecourtus.gov Library of Congress: www.loc.gov Primary Documents United States Constitution: http://www.constitutioncenter.org/explore/Welcome/index.shtml Bill of Rights: http://www.yale.edu/lawweb/avalon/rights1.htm Declaration of Independence: http://www.yale.edu/lawweb/avalon/declare.htm Articles of Confederation: http://www.yale.edu/lawweb/avalon/artconf.htm Religious Freedom Restoration Act (RFRA): religiousfreedom.lib.virginia.edu/sacred/RFRA1993.html Speeches and Writings Cited in This Text Roger Williams, “Bloudy Tenent of Persecution (1644): http://www.swarthmore.edu/SocSci/bdorsey1/41docs/31-wil.html Thomas Jefferson, Memorial and Remonstrance Against Religious Assessments (1785): http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html George Washington, Farewell Address (1796): http://www.yale.edu/lawweb/avalon/washing.htm Abraham Lincoln, Gettysburg Address (1863): http://www.yale.edu/lawweb/avalon/gettyb.htm Other Resources The Avalon Project at Yale Law School (documents in law, history and diplomacy): http://www.yale.edu/lawweb/avalon/avalon.htm First Amendment Center (news, research and analysis): www.firstamendmentcenter.org The Oyez Project (information about the U.S. Supreme Court and its decisions): www.oyez.org Pew Forum on Religion and Public Life (news and analysis): www.pewforum.org 23
24. This project was made possible by a grant from Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.
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