Law, the U.S. Supreme Court, and Religion
Law, the U.S. Supreme Court, and Religion
- Derek H. DavisDerek H. DavisBaylor University
The United States Supreme Court’s religion jurisprudence is typically analyzed based on whether a court’s decision emerges from an Establishment Clause analysis or a Free Exercise Clause analysis. While this method is useful, a more in-depth analysis can be undertaken by identifying various philosophical themes that describe the court’s varied approaches to deciding religion cases. The cases can be analyzed under at least four separate but interrelated themes: separation of church and state, cooperation between sacred and secular activities in religion-based contexts, equal treatment among religions, and the integration of religion and politics. This article examines the High Court’s often controversial decisions affecting religion through the lenses of these four themes.
The term “separation of church and state” is frequently used to describe the American relationship between law and religion, but this term is far too simplistic a description of how church and state interact in the American system; the ways in which the system sometimes embraces separation but sometimes does not, are analyzed and explained.
Consistent with the misconception that the Supreme Court always seeks to “separate” church and state, court analysts will sometimes describe the court’s strategy as giving “no aid” to religion. This also is a simplistic analysis, since it can clearly be shown that the court does not seek to “wall” off religion from government aid in all cases. Rather, the court tends to sanction state support of “secular” activities that arise in religion contexts while denying state aid to the “sacred” components of religious activity. “Equality” is a hallmark of American democracy. While the Founders did not earmark equality as a goal of the religion clauses, the concept has nevertheless emerged as a byproduct of deeper goals, namely sanctioning religious pluralism and providing equal access to government office. If separation of church and state were really the centerpiece of how religion and state activity interact in the United States, the Supreme Court would not sanction the involvement of religion in public debate and discourse, nor would it permit political candidates and officeholders to freely talk about religion in their personal lives and its role in American political life. But the court carefully crafts a jurisprudence that rarely intrudes on this kind of activity. In sum, looking at Supreme Court religion cases through a number of philosophical lenses is a fruitful guide to understanding court decisions that are otherwise often highly complex and confusing.
- Religion and Politics
- Religion in America
Analyzing the Court’s Religion Decisions
The United States Supreme Court plays a significant role with respect to religious institutions and religious practice in America. The role of the court derives specifically from its authority to engage in judicial review, that is, its authority to invalidate legislation or executive actions that violate the Constitution. The court’s jurisprudence in the realm of religion has generally been constructed by interpreting the meaning of the First Amendment’s religion clause: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” This provision is generally divided into two clauses, the first clause being the Establishment Clause, the second the Free Exercise Clause.
The body of religion cases addressed by the Supreme Court since it first convened in 1790 is voluminous, although the great majority of cases have been decided only since 1940. This is because prior to the court’s adoption of the “incorporation” doctrine in the twentieth century, the court considered religion to be under the jurisdiction of the states. But the incorporation of many of the Federal Bill of Rights into the Fourteenth Amendment changed that dramatically. In Gitlow v. New York (1925),1 the US Supreme Court began “incorporating” various provisions of the Federal Bill of Rights into the Fourteenth Amendment as a restraint on state actions. Gitlow held that the right of free speech, as expressed in the First Amendment, prohibited not only actions of Congress but also actions of the states. It was only a short reach from this provision to the religion clauses of the First Amendment.
The first twentieth-century US Supreme Court case to incorporate any of the Bill of Rights’ provisions on religion was Cantwell v. Connecticut (1940).2 The court held that the Free Exercise Clause protects Jehovah’s Witnesses’ right to distribute literature in support of their faith. Relative to incorporation, the court stated, “The fundamental concept of liberty embodied in the [Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment … The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact laws” prohibiting the free exercise of religion.3 Seven years later, in Everson v. Board of Education, the court incorporated the Establishment Clause, holding that it was permissible for Ewing, New Jersey, to reimburse parents for bus fares incurred to transport their children to Catholic schools.
With the incorporation doctrine now firmly entrenched in Supreme Court religion jurisprudence, in succeeding years the US Supreme Court took up many cases addressing government relations with citizens’ religious beliefs and practices. Most cases can be separated according to whether they raise free exercise or establishment claims, but sometimes this distinction is hard to determine, as one man’s establishment sometimes interferes with another’s free exercise of religion.
A better method of examining the court’s religion jurisprudence is to identify a number of philosophical themes that emerge from the myriad cases the court has addressed. Several philosophical themes emerge, as only one would never suffice to capture the court’s winding path to defining the parameters of the religion clauses. Overall, the court seems committed to at least four themes: separation of church and state, cooperation between sacred and secular activities in religion-based contexts, equality of government treatment among religions and religious persons, and integrating religion and politics. One must see these various themes as integrated into a much larger Supreme Court framework that seeks to set forth the contours of how government authority interfaces with religious practice in the United States. The court’s decisions sometimes seem contradictory, even to the most ripened experts. But by examining many of the court’s decisions under these four themes, the court’s difficult task of balancing the religion clauses and giving them meaning becomes more apparent and their decisions more rational.
Apparent inconsistencies abound. How is it, for example, that students in public schools cannot have vocal prayers in their classrooms4 or at their football games,5 but the US Congress can have its own chaplains to lead it daily in prayer? Or why is it that the Ten Commandments cannot be regularly posted in public school classrooms, yet the US Supreme Court building in Washington, DC, both inside and out, features several displays of the Ten Commandments?6 And how can a nation committed to the separation of church and state adopt a national motto that proclaims to the world, “In God We Trust?” On their face, these seemingly contradictory rules and practices might bizarre. But understood in the broader, elaborate framework of Supreme Court decisions, examined through the grid of the four themes already mentioned, these apparent consistencies can be understood, even justified.
Separation of Church and State
It is often said of the United States that its system is one of strict separation between church and state. While true in some respects, this depiction can only be described as a colossal overstatement; nevertheless “separation of church and state” has become the customary way of describing the relationship between religion and state in the American system.7 Yet the phrase is too broad to accurately describe the whole system, because in many respects there clearly is no “separation.” How can a system that proclaims “In God We Trust” as its national motto, invokes the names of God in its pledge of allegiance, observes a national day of prayer, and sanctions government-paid legislative chaplains be said to have a commitment to the separation of church and state? Obviously, the American tradition of separation of church and state does not mean that a separation of religion from government is required in all cases. So, while the phrase is too broad to embrace the whole system, it nevertheless does accurately describe an important part of the system.
The US Supreme Court has frequently resorted to an examination of the eighteenth-century Founding Fathers’ writings to ascertain the relationship between religion and state that was intended to undergird the American social and political order. The court has tended to rely extensively on Thomas Jefferson, the author of the Declaration of Independence and the nation’s third president, to determine much of the Founders’ “original intent.” In fact, the phrase “wall of separation between church and state” was first used in America by President Jefferson in 1802 as a shorthand explanation of the meaning he assigned to the religion clauses. This well-known phrase was enlisted by the US Supreme Court in 1947 as a useful metaphor in adjudicating religion clause disputes.8 The court thus acknowledges that separating church and state was fundamental to the Founders’ project.
“Separation of church and state” is therefore a legitimate concept in America, but it describes more an institutional separation than a strict separation. In other words, the Constitution requires that the institutions of church and state in American society not be interconnected, dependent upon, or functionally related to each other. The purpose of this requirement is to achieve mutual independence and autonomy for these institutions, based on the belief that they will function best if neither has authority over the other. Affected are the institutional bodies of religion, that is, churches, mosques, temples, synagogues, and other bodies of organized religion, and the institutional bodies of governmental authority—state and federal governments, but also small local bodies such as school districts, police departments, city councils, utility districts, municipal courts, county commissions, and the like. Consequently, churches and other houses of worship receive no direct governmental funding, nor are they required to pay income or property taxes. Government officials appoint no clergy; conversely, religious bodies appoint no government officials. Governments, even courts, are not allowed to settle church disputes that involve doctrinal issues.9 And religious bodies, unlike the Catholic Church in the Middle Ages, have no authority to dictate law or public policy, although they might try since they are not excluded as participants in political discourse.
One of the most fundamental meanings of the separation of church and state is that the state is prohibited from shaping, directing, or framing the religious beliefs of the individual citizen. While persons might believe that which is untrue, even be duped into believing that which is false, the Supreme Court has said repeatedly that it is not the province of the state to protect one from “bad” religions, even those that “might seem incredible, if not preposterous to most people.”10 As Justice William O. Douglas noted in U.S. v. Ballard:
The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern to the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.11
Tolerance is a hallmark of Supreme Court jurisprudence, but no American can rape, kill, or perform other intolerable acts in the name of religion. Nevertheless, the courts remain admirably reluctant to interfere in religious acts, and continue to cite the abiding and virtually sacrosanct principle first enunciated by the Supreme Court in an 1872 case, Watson v. Jones:
In this country the free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.12
The institutional separation of church and state is observed most frequently, and most controversially, in judicial decisions that limit religious activity in the public schools. The Supreme Court’s decisions limiting schools’ ability to entertain vocal prayers13 and scripture readings,14 to post the Ten Commandments and other religious texts,15 or to advance a particular religious worldview16 are intended to protect the sacred domain of religion from state interference. The High Court often stresses that children are highly impressionable, and that while it might be permissible for the state occasionally to accommodate religious observances in higher public education settings or in legislative assemblies, it is important to leave the religious training of young children generally to parents, religious bodies, and other private organizations. Thus it might be said that a “high” wall of separation is observed in the nation’s public K–12 schools. Yet it is important to remember that in the public school context, it is the precepts and practices of institutionalized religion that are prohibited from being embraced or proscribed. Courses that teach comparative religion, the historical or literary aspects of religion, or religion in a secular and objective way without any attempt to inculcate faith, are permitted, and even encouraged. As Justice Tom Clark wrote in Abington v. Schempp, “one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization … [S]tudy of the Bible or of religion, when presented objectively as part of a secular program of education [does not violate] the First Amendment.”17
The institutional separation of church and state is a novel experiment in human history. Most societies throughout history have operated on the assumption that government should be a moral agent, that it must play a leading role in crafting the human being. It became customary in ancient times for governments to sponsor, even require, religious worship and instruction as the means of inculcating morality into citizens’ lives. The American Founders were convinced that successful nation building would be impossible in the absence of a moral citizenry, but they believed that moral training, insofar as it was religiously based, must derive primarily from the faith community, not government.18 The Establishment Clause was the founders’ attempt to end government’s coercive role in directing the religious course of citizens’ lives; the Free Exercise Clause reflected their goal of putting religion in the hands of the citizens to enable them to shape their own religious commitments. It was a bold experiment, but one that is now central to Supreme Court religion jurisprudence. As Supreme Court Justice Wiley Rutledge once declared, “We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.”19 Justice Rutledge knew better than anyone that complete separation between church and state is impossible, but his words are a powerful reminder of how central the principle of separation is to the American way of life.
Cooperation between Sacred and Secular
The US Supreme Court has never authorized government money for churches and other houses of worship to be used strictly for religious, “nonsecular” purposes, such as payment of clergy salaries or conducting worship services. But government funding of other religiously based institutions, especially private religious schools, has been a subject of great controversy in the United States. In the mid-twentieth century, the US Supreme Court, when it began adjudicating a large number of religion cases, enunciated a “no aid” principle. Based on a strong principle of church-state separation, funding of religiously affiliated educational institutions in particular was considered beyond the scope of what the Constitution permits. This perspective advanced the idea that various forms of aid to religious institutions inevitably compromise their religious mission, cause dependence upon governmental support, politicize religion, and ultimately cause religion to lose its prophetic role and its ability to provide the moral foundations that the nation needs. It was in Everson v. Board of Education (1947) that the court so clearly enunciated this principle, but even the Everson decision seemed to defy the court’s thoroughly separationist rhetoric. The court included in a litany of prohibited acts foreclosed by the Establishment Clause this notable declaration: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”20 The court then held, inexplicably to some observers, that it was not a violation of this declaration to prevent the city of Ewing, New Jersey, from reimbursing parents for bus fares incurred to transport their children to Catholic schools. The decision seemed to some critics inconsistent with the court’s own pronouncement of what the Constitution requires, thus giving rise to the argument that the court never really adopted the “no aid” approach at all.
But occasionally the court would make rulings that genuinely seemed to support the “no aid” approach. Meek v. Pittenger (1975),21 for example, struck down an attempt by the Pennsylvania legislature to send various forms of aid to private religious schools. The court ruled that most of the aid, which ostensibly did not advance the “religious” aspects of the educational enterprise, such as loans of instructional equipment, recorders, lab instruments, and the provision of counseling and testing services for remedial students, was divertible to religious purposes and therefore violated the Establishment Clause. The court further noted, as it often did in “no aid” cases, that any aid to church-related schools, even that which was arguably “secular” in nature and thereby enabled the schools to expend their own funds on religion-specific activities, caused a breach of the Establishment Clause. The latter principle never was the majority view on the court, however, thus opening the door to a friendly linkage between church and state that might permit certain kinds of aid to religiously-based educational institutions.
While the High Court could have stuck by its “no aid” principle and universally denied any type of government aid, direct or indirect, to church-related schools, it chose to go another route—one of cooperation between government and religion by which it would approve funding of “secular” components of private religious schools while denying funding for those components that might advance the “sacred.” Consequently, the Supreme Court has permitted governments to purchase or provide, by way of example, textbooks,22 computers,23 equipment for diagnostic testing,24 auxiliary services performed away from a sectarian campus,25 standardized exams prepared by state officials,26 expenses for grading state-prepared exams,27 fees to an interpreter attending classes with a student at a religious school,28 buildings in which only secular activities are conducted or secular subjects are taught,29 and other miscellaneous expenditures on behalf of private religious schools because these forms of aid advance only the “secular” character of education and thus are not endorsements of religion. Programs that provide benefits that might be used for promoting or advancing religion, however, such as teacher stipends,30 open-ended subsidies that might be used to purchase religious texts or erect religious statues,31 reimbursements to parents sending their children to religious schools,32 salaries for teachers to teach in a “community education” program conducted at their own parochial school campus,33 or funds to finance field trips in which religious instruction might take place,34 have been held unconstitutional.
The Supreme Court subsequently moved even further from its original “no-aid” approach in a series of cases that highlighted the principles of “evenhanded neutrality” and “private choice.” An increasingly conservative court, led by Chief Justice William Rehnquist, began formulating in the 1980s a softer approach to aid to religious educational institutions that deepened further the concept of cooperation between the sacred and the secular. The court seized upon the idea that if government sought to benefit educational institutions in a neutral, evenhanded way in which religious recipients were not favored over nonreligious recipients, then there was no advancement of religion that might violate the Establishment Clause. Thus in Mueller v. Allen (1983),35 the court approved a Minnesota statute that granted tax deductions to taxpayers for most kinds of educational expenses. The benefit was available to parents of students attending all public and private schools. It mattered not, as noted by four dissenters, that the major deduction was for private school tuition which was not enjoyed by public school parents, nor that 96 percent of the attendees of private schools were enrolled in sectarian schools. The structure of the benefit package was such that the deductions allowed were available to all parents. This “evenhanded” structure provided “equal treatment” across the board and thus did not offend the Constitution. According to the court, programs “that neutrally provide state assistance to a broad spectrum of citizens [are] not readily subject to challenge under the Establishment Clause.”36
The court developed further this principle in Zobrest v. Catalina Hills.37 There, James Zobrest, a deaf student, wanted to attend a Catholic high school in Tucson, Arizona. Public school officials determined that a federal statute, the Individuals with Disabilities Educational Act, which made various kinds of aid to disabled students available no matter what kind of school the student attended, authorized payment for an interpreter for Zobrest who would attend all classes with him. The aid was challenged as an unconstitutional advancement of religion, but the court eventually held that because Zobrest could choose any school to attend, public or private, the legislation was “evenhanded” and nondiscriminatory, thus the expense for the interpreter was permissible. The court also deemed it important that Zobrest made a “private choice” to attend a Catholic school; therefore, the legislature was not deemed to be influencing his decision or favoring or advancing religion in any way.
Advancing the same principles of evenhanded neutrality and private choice, the court subsequently held in Mitchell v. Helms38 that if a state school system distributes federal funds to a range of both public and private schools that apply for the funds, the Establishment Clause is not violated since there is no predetermined outcome of how the funds will be distributed. A plurality of justices held that the expenditures must be for activities that are secular on their face without regard to potential divertibility to religious use or to whether the funding was direct (to the schools rather than to the students) rather than indirect. Justice Sandra Day O’Connor objected on the basis that “the plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives.”39 A subsequent case, Zelman v. Simmons-Harris,40 held that a state statute providing voucher funds to Cleveland, Ohio, students who wished to attend a school other than their own was not a violation of the Establishment Clause since the students could choose among an array of public, private, religious, community, or charter schools. It was irrelevant that 96 percent of the students enrolled in sectarian, mostly Catholic, schools.
The doctrines of evenhandedness and private choice now seem fairly well imbedded in the Supreme Court’s church-state jurisprudence. But the decisions supporting the doctrines are relatively new, not universally accepted by all of the court members, and controversial in a nation that traditionally has stood on the side of the separation of church and state. As Flowers, Rogers, and Green note, these decisions are certain to lead to a higher incidence of government funding of religious institutions in the near future,41 but it is also possible that the court will continue to search for a more nuanced balance among its disparate versions of cooperation between the secular and the sacred.
The cooperation principle affects other areas of religion-government interaction as well. In the late 1990s, the US government passed a set of measures that attempted to provide government funding of churches and other religious institutions that were willing to administer social service programs—soup kitchens, drug and alcohol rehabilitation programs, clothing pantries, homeless shelters, youth anticrime programs, and the like. Theoretically, these programs advance secular ends, thus passing constitutional scrutiny. But they are a bold challenge to traditional, pre-1980 constitutional doctrine, which held that churches, temples, mosques, and other houses of worship are “pervasively sectarian,” which means that their mission and purpose are so pervaded by religion that it is virtually impossible for them to ferret out “secular” aspects of their activity.42 This legislation, initially dubbed “Charitable Choice” because program beneficiaries under the legislation in which it was first adopted, the Welfare Reform Act of 1996, could choose either a government-funded religious or a secular provider, challenged traditional “separationist” judicial interpretations of the Establishment Clause. Proponents of Charitable Choice advance the ancient fear that without government aid, religion will suffer, potential recipients of assistance will be ignored, and society will experience moral decline. Opponents counter with the argument that religion thrives best when it relies on private rather than government resources, and that morality is best fostered in a climate of self-sustaining voluntarism rather than government-sustaining inducements.43 These are the same arguments that fueled the debate over “separation” ideals in the founding generation, but this time they were spurred by a new constitutional doctrine of “evenhanded neutrality.”44
During the administration of President George W. Bush (2001–2009), an administrative office was created exclusively to further the Charitable Choice concept. The Office of Faith-Based and Community Initiatives was created by executive order and paid for out of general appropriations, thus skirting Congressional oversight. The office created satellite offices in twelve government departments which funded various faith-based projects around the country. While, according to one study, only 7.1 percent of American congregations received any funding pursuant to the initiative,45 the program awarded contracts to faith-based institutions averaging more than two billion dollars annually during the Bush years.46 One scholar opined that the program placed social services only in the hands of entities—churches and other faith-based organizations—that had borne the weight of providing social services in the nineteenth century. But he neglected to explain that those services were financed largely by the private sector, not by government.47 When Barack Obama took office in 2009, he renamed the office: Office of Faith-Based Initiatives and Neighborhood Partnerships. He promised to make changes that would not entangle church and state, but the details of those changes were never entirely clear. What was apparent, however, was that he continued to pursue a workable arrangement that would make possible real cooperation between the sacred and the secular.
Equal Treatment of Religion
Equality is one of the highest ideals in the American system of government. This has been true since the founding era, as famously recognized by Abraham Lincoln in the Gettysburg Address: “Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”48 In our own day, the United States remains committed as a nation to realizing, to the maximum degree possible, equality among its citizens in how they are treated by government. But aspiring to equality and achieving equality are two different things. And equality is almost always achieved incrementally. Lincoln fought bravely for racial equality, but even a post–Civil War constitutional amendment that abolished slavery hardly resulted in immediate equal treatment of all races in America. Under a doctrine of “separate but equal,” racial discrimination continued to manifest itself across America in its social, governmental, and educational institutions. Brown vs. Board of Education (1954), was clearly a major advance in achieving racial nondiscrimination in education, but the country still falls short in achieving its highest ideals in its public schools, as Supreme Court Justice Sonia Sotomayor noted: “Until we get equality in education, we won’t have an equal society.”49
How does the Supreme Court address the concept of religious equality? Is equality of religion even possible in a land where, according to some experts, there are as many as 3000 identifiable religions? How do religious pluralism and the separation of church and state impact the goal of achieving equality in religion? If equality of religion is the country’s goal, or at least part of its goal, is it succeeding in achieving this goal?
Interestingly enough, those who drafted the Constitution’s provisions on religion rarely focused on the term or concept of “equality.” The discussion about how to treat religion under the Constitution was robust and complex, but in the end it resulted in two basic provisions: (1) a clause in Article 6 that reads: “no religious test shall ever be required as a Qualification to any Office or public Trust under the United States”; and (2) a First Amendment that reads, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note that there is no mention of “equality” in either of these provisions. “Equality” was part of the discussion, as when James Madison acknowledged some time later that “among the features peculiar to the political system of the United States, is the perfect equality of rights which it secures to every religious sect.”50 But “equality” was not the centerpiece in the Founders’ efforts to craft a workable relationship between religion and government. Rather, the notion of “equality” turns out to be something of a byproduct to the main purposes of the Constitution’s provisions on religion. Take, for example, the no religious test clause. The primary purpose of this provision was to end the mandate that religion is essential to holding public office. Hereafter, no man would be hindered from serving his country due to his religion; any man would be competent to discharge his service as federal officeholder, no matter his religion. But there are dimensions of “equality” in this provision: all religions are treated equally in that none are privileged, and all men are treated equally in that none will be discriminated against solely due to his religion. But no one in the founding era specifically called this a provision providing for “equality.”
Because it has embraced religious pluralism, enforced through the mechanism of separating church and state, the state is prohibited from shaping, directing, or framing the religious beliefs of the individual citizen. All are free to choose and practice their own religion. The Free Exercise Clause protects this basic right and the Establishment Clause prevents the government from choosing its favorite religions and thus denying the free exercise guarantee. While persons might be duped into believing that which is false, the Supreme Court has said repeatedly that it is not the province of the state to protect anyone from “bad” religions.51 It can thus readily be observed that enshrining religious pluralism in the American order has as one of its purposes treating all American citizens equally by stripping government of the ability to craft citizens’ religious beliefs or prevent them from shaping their own beliefs. It is not the case, of course, that American citizens can do anything without fear of legal retribution in the name of religion. Thus sacrificing one’s child, refusing blood transfusions or other medical treatment to one’s child who is unable to speak for herself, intentionally defrauding parishioners, participating in snake-handling practices during worship services, or delivering incompetent counseling—all acts entered into on the strength of religious belief—are practices that have occasionally been proscribed by American courts.
Reference was made in the previous section (“Cooperation between Sacred and Secular”) regarding the Supreme Court themes of “evenhandedness” and “equal treatment,” doctrines which emerged in the 1980s and make their appearance periodically in court decisions. But equality, as a goal of religion clause jurisprudence, emerges in other contexts as well. The goal of equality is also seen in the expression of civil religion in American life. Civil religion, according to Robert Bellah, is about those public rituals that express the nexus of the political order to the divine reality.52 By most accounts, civil religion is a form of religion which gives sacred meaning to national life. It is a kind of theological glue that binds a nation together by allying the political with the transcendent. The most common symbols of American civil religion are the national motto, “In God We Trust,” which also appears on US currency; the invocation of God’s name in the pledge of allegiance, recited daily by students in many of the nation’s public schools; the observance of a National Day of Prayer; the utilization of government-paid chaplains in the military, US Congress, and state legislatures; and the frequent allusion to God and America’s religious destiny in political speeches (every president has acknowledged God in his inaugural address). These civil religious expressions are promoted by both church and state, are generally sanctioned by the Supreme Court, and thus serve to imbed in the national civil order an unmistakable religious quality.
Civil religion has been for much of American history, and remains, a vital cultural force. While atheists and humanists might object to civil religious expressions, the Supreme Court tends to approve them if they display a quality of fairness and equality. For example, by referencing a generic “God,” rather than a specific Jesus, Yahweh, Allah, Horus, Thor, or Zeus, the national motto “In God We Trust” seeks to be as inclusive as possible, with judges relying on the belief that almost any believer in divinity will not be offended by the motto.
Integration of Religion and Politics
Separation of church and state, cooperation between the sacred and secular, and religious equality in the treatment of American citizens are indeed important to Supreme Court jurisprudence, but they do not describe all aspects of the interplay between religion and state. This is readily seen in the way that the American system encourages the participation of religious voices in the political process. Were the system one of total separation, it would not countenance the active involvement of religious persons, faith communities, and religious organizations that vigorously enter public discourse, seeking to persuade government officials of the merits of framing law and public policy to reflect their distinctly religious outlooks.
The right of churches and other religious bodies to engage in political advocacy and to make political pronouncements has never been seriously questioned by the Supreme Court throughout the nation’s history, from the colonial period down to the present. In the years leading up to the American Revolution, for example, the churches assumed a leading role in the political debate on the question of whether the colonies should go to war with the mother country. In the nineteenth century, the major causes for political action among the churches and other religious groups were slavery, temperance, and nonsectarian education. In the twentieth century, the engagement of religious bodies in the body politic grew to cover a wide range of issues, including economic and social justice, war and peace, abortion, homosexuality, civil rights, and world hunger. Today virtually all of the major religious groups in America and many religious coalitions have public affairs offices in Washington, DC, to lead their lobbying efforts.53 These groups, for the most part, do not consider that these offices exist for the promotion of their own interests, but as an effective means by which they give witness in public affairs based upon their own understanding of their mission in the world.
Given the time-honored right of religious bodies to be active participants in the American political process, it is not surprising that the Supreme Court has not seriously challenged this basic right. The strongest affirmation of this right was given by the court in Walz v. Tax Commission (1970): “Adherents of particular faiths and individual churches frequently take strong positions on public issues, including … vigorous advocacy of legal and constitutional positions. Of course, churches as much as secular bodies and private citizens have that right.”54 Likewise, in McDaniel v. Paty (1978), a case striking down the last of the state statutes prohibiting ministers from seeking state office, the Supreme Court affirmed the importance and protected status of religious ideas in public debate: “[R]eligious ideas, no less than any other, may be the subject of debate which is uninhibited, robust, and wide-open … That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife, does not rob it of its constitutional protection.”55
Supreme Court pronouncements such as these, however, should not lead one to assume that organized religion in America enjoys an absolute right to participate in the making of public policy, free from governmental interference of any type. These groups are subject to losing their tax exemptions, for example, for “substantial” political expenditures56 or for endorsing political candidates (“lobbying”).57 Nevertheless, they enjoy essentially the same rights as secular groups to participate in the political process. The principles of democracy prevail in this instance, such that every person or group in American society, religious or secular, that wishes to contribute to democratic governance is free to do so, even encouraged to do so, even though such participation constitutes a technical violation of the principle of church-state separation. Complete separation would mean banning the activities of the Christian Coalition and approximately 125 other religious lobbies whose sole reason for existence is to influence lawmaking and public policy according to religiously inspired perspectives. Although many of these lobbies, unfortunately, attempt to issue dictates rather than offer advice, mandates rather than persuasive arguments, the great majority of them have learned to submit their perspectives with some degree of humility, recognizing that America is a democracy shaped by many views, not a theocracy shaped by a few.
American adherence to the integration of religion and politics also means that potential candidates and officeholders are free to speak about their religious views. They may think it prudent at times to abstain from too much “God-speak,” but the Free Exercise Clause gives them the freedom to speak freely about matters of faith, even, for the most part, when acting in their official capacities. It is unlikely that a candidate for president could be elected in America without some candid talk about his or her religious views. America is diverse in its religious makeup, but it is unmistakably one of the most religious nations on the globe, and the American people generally demand to know their representatives’ religious beliefs. No avowed atheist has ever been elected president, and while many of the early presidents (perhaps as many as the first seven) were deists, every president has personally participated in Protestant religious activities while in office save two: John F. Kennedy, who was a Catholic, and Richard M. Nixon, who was a Quaker. The Supreme Court has never seem fit to muzzle political candidates who talk about religion, whether the topic be their own religion or the role that religion plays in American life.
The Constitution forbids the administration of formal religious tests for holding public office (all but six states have followed suit), but this is different from the unofficial expectation that an officeholder have at least some religious commitments. This expectation is the product of a religious culture, of a body of citizens who “are a religious people whose institutions presuppose a Supreme Being.” This was the perspective of Supreme Court Justice William O. Douglas in 1954,58 but it remains true more than a half century later.
Religion and politics in the United States are intertwined in inextricable ways. Americans for the most part accept this. This mix is a part of political and governmental life. In the making of law and public policy, there are a great many issues that need resolution. Religious issues (e.g., abortion, homosexuality, stem cell research, and war policy) often need political solutions in the same way that more strictly secular issues like commerce, health policy, defense, and education need political solutions. Of course good people often disagree about the best resolutions, thus we have witnessed the evolution and development of political parties over the life of American history. Disagreement among citizens and political parties, therefore, is expected; healthy debate on the resolution of issues, including those that are religious in nature, is part of a vibrant, healthy democracy. The High Court seems to sanction a close affinity between religion and public discourse.
While contradictory in many respects, the principles of separation of church and state, cooperation between sacred and secular, religious equality in the treatment of religion, and the integration of religion and politics combine to provide unique but important contributions to American life. The role of religion in American public life has been controversial since the founding and will likely remain so far into the future. But perhaps the themes discussed above, all of which emerge from Supreme Court decisions, remove some of the hard edges from the controversy, because they embrace elements of both conservative and liberal thought, of competing philosophical and theological beliefs, indeed of arguments advanced by both separationists and antiseparationists. Such is the way a democracy should work—disparate elements coming together to produce that which hopefully serves everyone, and the United States Supreme Court has emerged as the institution that plays the largest role in mediating the entire process.
Review of the Literature
Any investigation into the Supreme Court’s treatment of religion requires a basic understanding of the historical development of the religion clauses and how the emergent interpretations of those clauses differ. Those who see a mandate in the clauses requiring only the prohibition against a national church, thus allowing for broader governmental advancement of religion, are often called accommodationists. Those who interpret the clauses to require more extensive prohibitions of governmental support of religion are frequently referred to as separationists. Almost all Supreme Court decisions are nuanced presentations of one of these two basic positions or, in some cases, hybrids of both. Among the best works presenting accommodationist interpretations are Chester James Antieu, Arthur L. Downey, and Edward C. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religions Clauses (Milwaukee, WI: Bruce, 1964); Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976); Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute for Public Policy Research, 1978); Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth, 1982); Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002); and Daniel Dreisbach, Thomas Jefferson and the Separation between Church and State (New York: New York University Press, 2002). Among the best with separationist works are Leo Pfeffer, Church, State and Freedom, 2nd ed. (Boston: Beacon, 1967); Leonard Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986); Anson Phelps Stokes, Church and State in the United States: Historical Development and Contemporary Problems of Religious Freedom under the Constitution, 3 vols. (New York: Harper, 1950); Derek H. Davis, Religion and the Continental Congress, 1774–1789: Contributions to Original Intent (New York: Oxford University Press, 2000); and Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case against Religious Correctness (New York: Norton, 1996).
The history of Supreme Court decisions on religion reflects this basic difference in approach. Justices who are political conservatives tend to be accommodationists; those who are political liberals tend to be separationists. There is no easy solution to this divide. The court, and its individual justices, will likely continue to go back and forth in championing these two fundamental positions, consistently battling commitments to already formulated outcomes in certain types of cases.
Reading the cases themselves is the best way to understand the court’s decisions. The full text of the court opinions can be accessed in the US Reporter series, which includes all US Supreme Court decisions. These volumes can be found in most law libraries. By far the best source of the text of Supreme Court religion cases with accompanying analysis and commentary is Ronald B. Flowers, Melissa Rogers, and Steven K. Green, Religious Freedom and the Supreme Court (Waco, TX: Baylor University Press, 2009). This volume is compressive and includes insightful comments about the cases and the court’s interpretive approaches.
The most extensive bibliography covering the historical, cultural, political, judicial, philosophical and contemporary aspects of church and state in the United States, including US Supreme Court decisions, is found in Derek H. Davis, ed., The Oxford Handbook on Church and State in the United States (New York: Oxford University Press, 2010). Another excellent bibliographic source, though somewhat dated, is John F. Wilson, Church and State in America: A Bibliographic Guide, 2 vols. (Westport, CT: Greenwood, 1987).
- Alley, Robert S., ed. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus, 1999.
- Berman, Harold J. Faith and Order: The Reconciliation of Law and Religion. Atlanta: Lightning, Source, 1993.
- Berns, Walter. The First Amendment and the Future of American Democracy. New York: Basic Books, 1976.
- Cord, Robert L. Separation of Church and State: Historical Fact and Current Fiction. New York: Lambeth, 1982.
- Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First Amendment. New York: Oxford University Press, 1986.
- Davis, Derek H. Religion and the Continental Congress, 1774–1789: Contributions to Original Intent. New York: Oxford University Press, 2000.
- Davis, Derek H., ed. The Oxford Handbook on Church and State in the United States. New York: Oxford University Press, 2010.
- Dreisbach, Daniel. Thomas Jefferson and the Separation between Church and State. New York: New York University Press, 2002.
- Flowers, Ronald B. To Defend the Constitution: Religion, Conscientious Objection, Naturalization, and the Supreme Court. Lanham, MD: Scarecrow, 2003.
- Flowers, Ronald B. That Godless Court? Supreme Court Decisions on Church-State Relations. 2nd ed. Louisville: Westminster John Knox Press, 2005.
- Flowers, Ronald B., Melissa Rogers, and Steven K. Green, Religious Freedom and the Supreme Court. Waco, TX: Baylor University Press, 2009.
- Green, Steven K. The Second Disestablishment: Church and State in the Nineteenth Century. New York: Oxford University Press, 2009.
- Greenawalt, Kent. Religion and the Constitution. 2 vols. Princeton, NJ: Princeton University Press, 2006–2008.
- Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999.
- Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.
- Kramnick, Isaac, and R. Laurence Moore. The Godless Constitution: The Case against Religious Correctness. New York: Norton, 1996.
- Levy, Leonard. The Establishment Clause: Religion and the First Amendment. New York: Macmillan, 1986.
- Malbin, Michael J. Religion and Politics: The Intentions of the Authors of the First Amendment. Washington, DC: American Enterprise Institute for Public Policy Research, 1978.
- McConnell, Michael, John Garvey, and Thomas Berg. Religion and the Constitution. 2nd ed. New York: Aspen, 2006.
- Miller, William Lee. The First Liberty: Religion and the American Republic. New York: Alfred A. Knopf, 1986.
- O’Connor, Sandra Day. The Majesty of the Law: Reflections of a Supreme Court Justice. New York: Random House, 2003.
- Sehat, David. The Myth of American Religious Freedom. New York: Oxford University Press, 2011.
- Stokes, Anson Phelps. Church and State in the United States: Historical Development and Contemporary Problems of Religious Freedom under the Constitution. 3 vols. New York: Harper, 1950.
- Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom. Princeton, NJ: Princeton University Press, 2007.
- Witte, John, Jr. Religion and the American Constitutional Experiment: Essential Rights and Liberties. 2nd ed. Boulder, CO: Westview, 2004.
- Wood, James E., Jr., ed. Readings on Church and State. Waco, TX: James M. Dawson Institute of Church State Studies, Baylor University, 1989.
1. 268 U.S. 652 (1925).
2. 310 U.S. 296 (1940).
4. Engel v. Vitale, 370 U.S. 421 (1962), and Abington v. Schempp, 374 U.S. 203 (1963).
5. Santa Fe v. Doe, 530 U.S. 27 (2002).
6. For a discussion of the Ten Commandments in public life, see Derek H. Davis, “The Ten Commandments as Public Ritual,” Journal of Church and State 44 (Spring 2002): 221–228.
7. Two basic views of “separation” dominate the scholarly literature. Those who see separation as requiring only the prohibition against a national church, thus allowing for broader governmental advancement of religion, are often called accommodationists. Those who argue for more extensive prohibitions of governmental support of religion are frequently referred to as separationists.
8. See Everson v. Board of Education, 330 U.S. 1 (1947). For disparate treatments of the origin and development of the “separation” metaphor, see Daniel Dreisbach, Thomas Jefferson and the Separation of Church and State (New York: New York University Press, 2002); and Derek H. Davis, “The ‘Wall of Separation’ Metaphor,” Christian Ethics Today 49 (Spring 2004): 1.
9. Jones v. Wolf, 443 U.S. 595 (1979).
10. U.S. v. Ballard, 322 U.S. 78 (1944), 87.
12. Watson v. Jones, 80 U.S. 679 (1872), 728.
13. Engel v. Vitale, 370 U.S. 421 (1962); and Lee v. Weisman, 505 U.S. 577 (1992).
14. Abington v. Schempp, 374 U.S. 203 (1963).
15. Stone v. Graham, 449 U.S. 39 (1980).
16. Epperson v. Arkansas, 393 U.S. 97 (1968); and Edwards v. Aguillard, 482 U.S. 578(1987).
17. Abington v. Schempp, 225.
18. See chapter 10, “Virtue and the Continental Congress,” in Religion and the Continental Congress, 1774–1789: Contributions to Original Intent, ed. Derek H. Davis (New York: Oxford University Press, 2000).
19. Everson v. Board of Education, 330 U.S. 1 (1947), 59.
21. Meek v. Pittenger, 421 U.S. 229 (1977). Meek has been referred to as “the ‘high water mark’ of no-aid separationism.” See Ronald B. Flowers, Melissa Rogers, and Steven K. Green, Religious Freedom and the Supreme Court (Waco, TX: Baylor University Press, 2009), 569.
22. Board of Education v. Allen, 392 U.S. 236 (1968).
23. Mitchell v. Helms, 530 U.S. 793 (2000).
24. Levitt v. Pearl, 413 U.S. 472 (1973).
25. Wolman v. Walter, 433 U.S. 229 (1977).
26. Levitt v. Pearl.
27. Wolman v. Walter.
28. Zobrest v. Catalina Hills, 509 U.S. 1 (1993).
29. Tilton v. Richardson, 403 U.S. 672 (1971); Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1971); and Hunt v. McNair, 413 U.S. 734 (1973).
30. Lemon v. Kurtzman, 403 U.S. 602 (1971).
31. Pearl v. Nyquist, 413 U.S. 756 (1973).
33. Grand Rapids v. Ball, 473 U.S. 373 (1985).
34. Wolman v. Walter, 433 U.S. 229 (1977).
35. Mueller v. Allen, 463 U.S. 388 (1983).
37. Zobrest v. Catalina Hills, 509 U.S. 1 (1993).
38. Mitchell v. Helms, 530 U.S. 793 (2000).
39. Mitchell v. Helms, 530 U.S., at 847. For further analysis of the Helms case, see Derek H. Davis, “The U.S. Supreme Court as Moral Physician: Mitchell v. Helms and the Constitutional Revolution to Reduce Restrictions on Governmental Aid to Religion,” Journal of Church and State 43 (Spring 2001): 213–233. It is further discussed in Flowers, Rogers, and Green, Religion and the Supreme Court, 568–571.
40. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
41. Flowers, Rogers, and Green, Religion and the Supreme Court, 571.
42. After Mitchell v. Helms, the “pervasively sectarian” principle has a precarious status in Supreme Court jurisprudence.
43. On Charitable Choice legislation generally, see Derek H. Davis and Barry Hankins, Welfare Reform and Faith-based Organizations (Waco, TX: James M. Dawson Institute of Church-State Studies, 1999); and Sheila Suess Kennedy and Wolfgang Bielefeld, Charitable Choice at Work: Evaluation Faith-Based Job Programs in the States (Washington, DC: Georgetown University Press, 2006).
44. See Derek H. Davis, “A Commentary on the Supreme Court’s ‘Equal Treatment’ Doctrine as the New Constitutional Paradigm for Protecting Religious Liberty,” Journal of Church and State 46 (Autumn 2004): 717–737.
45. Ann Farris and Claire Hughes, Roundtable on Religion and Social Welfare Policy, “Durability of Bush Administration’s Faith-Based Effort at Issue in 2008,” January 8, 2008.
46. Amy E. Black, Douglas L. Koopman, and David K. Ryden, Of Little Faith: The Politics of George W. Bush’s Faith-Based Initiatives (Washington, DC: Georgetown University Press, 2004).
47. Marvin Olasky, Compassionate Conservatism: What It Is, What It Does, and How It Can Transform America (Glenove, IL: Free Press, 2000).
48. Derek H. Davis, “Religious Equality in the American National Order,” GPSOLO [a publication of the American Bar Association] 31, no. 6 (2014): 28.
51. U.S. v. Ballard, 322 U.S. 78 (1944), 87.
52. Robert N. Bellah, The Broken Covenant: American Civil Religion in Time of Trial, 2nd ed. (Chicago: University of Chicago Press, 1993).
53. For excellent treatments of religious lobbying, see Ronald J. Hrebenar and Ruth K. Scott, Interest Group Politics in America (Englewood Cliffs, NJ: Prentice-Hall, 1982); Jeffrey M. Berry, The Interest Group Society (Glenview, IL: Scott, Foresman, 1989); Allen D. Hertzke, Representing God in Washington: The Role of Religious Lobbies in the American Polity (Knoxville: University of Tennessee Press, 1988); Jeffrey M. Berry, The New Liberalism: The Rising Power of Citizens Groups (Washington, DC: Brookings Institution Press, 1999); Daniel J. B. Hofrenning, In Washington, but Not of It: The Prophetic Politics of Religious Lobbyists (Philadelphia, PA: Temple University Press, 1995); Cynthia D. Moe Lobeda, The Public Church: For the Life of the World (Minneapolis, MN: Augsburg Fortress, 2004); and Luke Eugene Ebersole, Church Lobbying in the Nation’s Capital (New York: Macmillan, 1951).
54. Walz v. Tax Commission, 397 U.S. 664 (1970).
55. McDaniel v. Paty, 435 U.S. 618 (1978), 640.
56. Though there is no clear rule for defining “substantial,” one case suggests there is a “safe harbor” if an organization’s lobbying expenses do not exceed 5 percent. Seasongood v. Commissioner, 227 F.2d 907 (6th Cir. 1955). In another case, a court held that a church spending approximately 22 percent of its revenues on members’ medical bills under a church medical plan was engaged in a “substantial nonexempt activity”; Bethel Conservative Mennonite Church v. Commissioner 80 T.C. 352 (1983), rev’d., 746 F.2d 388 (7th Cir. 1984). Another court has held that a percentage test is inappropriate. Haswell v. United States, 500 F.2d 1133 (Ct. Cl. 1974), cert. denied, 419 U.S. 1107 (1975). Still, according to one source, no more than 20 percent of expenditures would be deemed “insubstantial.” See Lynn R. Buzzard and Sherra Robinson, I.R.S. Political Activity Restrictions on Churches and Charitable Ministries (Diamond Bar, CA: Christian Ministries Management Association, 1990), 53–59.
57. “Lobbying” is defined in the Internal Revenue Code Section 4911 (d)(1). Various regulations, rulings, and court decisions on the meaning of “lobbying” are explained well in Buzzard and Robinson, I.R.S. Political Activity Restrictions, 42–52.
58. Zorach v. Clauson, 343 U.S. 306 (1952), at 313.