Reflections on the First Freedom
Albert J. Menendez January/February 2012
You don't have to believe in American "exceptionalism" to recognize that in the way it handles church-state matters the United States of America has made a vital and significant contribution to civilization.
In a nutshell this means that government takes no side in religious disputes, does not prefer one religion above others, and does not tolerate civil disabilities because of a person's religious faith or lack of one. With a constitutional mandate to back it up, the U.S. has said no to religious establishment of any kind, no to religious tests for public office, and yes to the free exercise of religious conviction.
It's all spelled out in the First Amendment to the Bill of Rights and in Article VI of the Constitution. As Martha C. Nussbaum explains in her recent book, Liberty of Conscience: "Throughout America's history those clauses have been understood to guarantee all citizens both religious liberty and religious equality: no religion will become an orthodoxy that undercuts any citizen's claim to equal rights."1
Of course, the application has been uneven. We haven't always lived up to our principles. At times, "outsider" religions (Mormons, Catholics, Jews, Quakers, Muslims, some evangelicals) have had to struggle for acceptance and equality (Just ask presidential candidate Romney). But the mandate of the Founders is clear and unequivocal and has been more fully applied at the federal and state levels to make the dream of religious equality a reality. In comparison to other nations, our record is enviable. While the image of the U.S. is tarnished today for many of our foreign policies, the nation's experience in attracting and welcoming more different religions and achieving a pluralism and diversity unparalleled in history can be seen as the result of our church-state paradigm.
Observers from far and near have noted, often with envy, a nation that formally separates the institutions of religion and government but has vigorous, independent religious institutions and a culture and society rich in religious experience. The contrast with countries steeped in religious establishments and favoritism on the one hand or government-inspired religious repression on the other is instructive and noteworthy.
The American system works. As Steven Waldman rightly observes in his superb book, Founding Faith: "America is religiously free. The Founding Fathers tried a radical new approach —and it worked."2
To be sure, there have been some changes on the playing field. For one thing, federal courts are more active in applying the religion clauses to more complex interaction between religion and government, particularly in education and health care. Such problems as the place of religion in the curriculum, the extent to which students may express religious convictions on campus, and the place of religion-based medical ethics in publicly supported health-care facilities all come to mind as examples of continuing church-state issues.
The Founders were deeply distrustful of government, which is why one can read the Constitution and Bill of Rights as restrictions on overweening government actions that threaten liberties that are held to be inherent. This does not justify government inaction or indifference to human need, but it does represent the founders' skepticism of authoritarian government, which is what most of them knew from their British colonial experience and from their observations of other European monarchies.
Because so many church-state disputes today relate to interpretations of the religion clauses of the First Amendment (banning establishment or anything that looks like it and guaranteeing free exercise), courts have replaced legislatures as referees. This is also why those who support more institutional religious involvement in public policy (called accommodationists for want of a better word) tend to favor removing federal court jurisdictions from some church-state issues, hoping to shift resolution of the disputes to more conservative state legislatures. Such actions have failed to win majority support in both houses of Congress, even during the dozen years of Republican rule (1995-2007). Therefore, the church-state issues of today and in the foreseeable future are still likely to be resolved in the federal courts.
It is likely that the major (and minor) church-state issues in the coming years will occur at the intersection between the two religion clauses, exemplifying the inherent tension that many scholars believe exists in the delicate balancing act bequeathed to us by the founders. Can zoning laws and welfare statutes be written and implemented without doing damage to either one or the other clause? Are prayers permissible before legislative assemblies, at council meetings, or school board sessions, and, if so, do they have to be innocuous, generic, and nonoffensive? Can the government encourage days of prayer and thanksgiving, or encourage abstinent and sober behavior by its citizens? How much religious rhetoric is desirable or acceptable in presidential addresses and proclamations?
Civil religion is an amorphous concept, much like natural law. No one has seen it exactly, but almost everyone admits that it is around somewhere, at least in the eyes of its beholders. Civil religion falls in the crack between the no establishment and free exercise principles, and it is inevitable that a diverse society will make room for its manifestation, or accord it some leeway. The late Supreme Court justice William Brennan described it as "ceremonial deism."
While establishment cases often seem to attract more media attention, free exercise rights have taken something of a beating from allegedly conservative Supreme Courts. In particular, minority and less politically powerful religions seem to have been disfavored in a number of troubling rulings in the past two decades, provoking Congress to seek a restoration of equality.
In a paper released in October 2007 by the Pew Forum on Religion and Public Life, scholars from George Washington University Law School argued that free exercise jurisprudence remains crucial to the future of religious freedom in the nation that gave birth to that ideal: "American courts and legislatures continue to struggle with the vexing question of whether and under what conditions religiously motivated actions should be exempt from generally applicable laws. The persistence of such a question is inevitable in a religiously pluralistic society with a wide variety of religious practices. As religious pluralism in the U.S. increases, these questions are bound to occur with increasing frequency. The answers, however, may prove elusive, requiring the courts to continue to grapple with the precise meaning of the free exercise clause."3
Our constitutional system continues to work, despite recurring tensions and challenges. Its fruits can be observed in the Pew Forum's "U.S. Religious Landscape Survey, 2008,"4 which found a remarkable diversity and dynamism in the nation's religious life. Commenting on the survey results, J. David Holcomb, associate director of the Center for Religious Liberty at the University of Mary Hardin-Baylor, observed, "The Pew Survey affirms a longstanding truism of American religious life: religious commitment and pluralism flourish in a nation committed to religious liberty and the separation of church and state. . . . One of the consequences of the high levels of religious identity in the United States is that we find ourselves frequently wrangling over the proper role of religion in American public life. As we debate where to draw the lines separating church and state, it is worth remembering that the principle of separation has not only guaranteed our religious freedom but also has fostered the dynamic religious culture of the United States."5
1 Martha C. Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008), p. 3.
2 Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (New York: Random House, 2008), p. 200.
3 www.pewforum.org.
4 Ibid.
5 "The Pew Survey on Religious Affiliation in the United States: A Commentary on Religious Freedom and Diversity?" (available online at www.umhb.edu/academics/crl).