not all the founders endorsed religious freedom for everyone, some of them, notably Thomas Jefferson and James Madison, cherished the notion of a universal freedom of conscience—the right of all individuals to believe as they pleased. Jefferson wrote that the First Amendment built “a wall of separation between church and State.”14 The founders based their view of religious freedom on two main arguments. First, history has shown, from the Holy Roman Empire to the Church of England, that when church and state are linked, all individual freedoms are in jeopardy. After all, if government is merely the arm of God, what power of government cannot be justified? Furthermore, religion can divide society into the factions that Madison saw as the primary threat to republican government and individual liberty. A second argument for practicing religious freedom is based on the effect that politics can have on religious concerns. Early champions of a separation between politics and religion worried that the spiritual purity and sanctity of religion would be ruined if it was mixed with the worldly realm of politics, with its emphasis on power and influence.15
The Establishment Clause
The beginning of the First Amendment, forbidding Congress to make laws that would establish an official religion, is known as the establishment clause. Americans have fought over the meaning of the establishment clause almost since its inception. Although founders like Jefferson and Madison were clear on their position that church and state should be separate realms, other early Americans were not.
establishment clause the First Amendment guarantee that the government will not create and support an official state church
A similar division continues today between the separationists, who believe that a “wall” should exist between church and state, and the nonpreferentialists, or accommodationists, who contend that the state should not be separate from religion but rather should accommodate it, without showing a preference for one religion over another. Accommodationists argue that the First Amendment should not prevent government aid to religious groups, prayer in school or in public ceremonies, public aid to parochial schools, the posting of religious documents such as the Ten Commandments in public places, or the teaching of the Bible’s story of creation along with evolution in public schools. Adherents of this position claim that a rigid interpretation of separation of church and state amounts to intolerance of their religious rights or, in the words of Supreme Court Justice Anthony Kennedy, to “unjustified hostility to religion.”16 Presidents Ronald Reagan, George H. W. Bush, and George W. Bush, and many other Republicans, have shared this view, as have many powerful interest groups such as the Christian Coalition.
separationists supporters of a “wall of separation” between church and state
accommodationists supporters of government nonpreferential accommodation of religion
A lot is clearly at stake in the battle between the separationists and the accommodationists. On one side of the dispute is the separationists’ image of a society in which the rights of all citizens, including minorities, receive equal protection under the law. In this society, religions abound, but they remain private, not matters for public action or support. Very different is the view of the accommodationists, which emphasizes the sharing of community values, determined by the majority and built into the fabric of society and political life.
Today U.S. practice stands somewhere between these two views. Sessions of Congress open with prayers, for instance, but a schoolchild’s day does not. Although religion is not kept completely out of our public lives, the Court has generally leaned toward a separationist stance.17
As the more conservative appointments of Republican presidents Richard Nixon and Reagan began to shape the Court, the Court’s rulings moved in a more accommodationist direction. In Lemon v. Kurtzman (1971), the Court added to the old test a third provision that a law not foster “an excessive government entanglement with religion.”18 Under the new Lemon test, the justices had to decide how much entanglement there was between politics and religion, leaving much to their own discretion.
Lemon test the three-pronged rule used by the courts to determine whether the establishment clause is violated
As the current rule in deciding establishment cases, the Lemon test is not used consistently, primarily because the justices have not settled among themselves the underlying issue of whether religion and politics should be separate, or whether state support of religion is permissible.19 The justices still lean in a separationist direction, but their rulings occasionally nod at accommodationism. Meanwhile, many states have taken matters into their own hands by blurring the line, allowing students to give “inspirational” messages at school events, for instance, or allowing schools to offer Bible classes or to teach evolution as a controversy rather than settled science.20 These practices and laws are the new battlefield over religious establishment, and the Court will no doubt be called on to weigh in before long.
The Free Exercise Clause
Another fundamental question about religious freedom that divides the public and justices alike is what to do when religious beliefs and practices conflict with state goals. The second part of the First Amendment grant of religious freedom guarantees that Congress shall make no law prohibiting the free exercise of religion. The free exercise clause, as it is called, has generated as much controversy as the establishment clause. When is the state justified in regulating religion? Although Americans have an absolute right to believe whatever they want, their freedom to act is subject to government regulation (see Snapshot of America: What Do We Believe?).21 The state’s police power allows it to regulate behavior in order to protect its citizens and to provide social order and security. These two valued goods of religious freedom and social order are bound to conflict, and the Court has had an uneasy time trying to draw the line between them. Although it waffled a bit before doing so, the Court has said that schoolchildren cannot be required to salute the American flag if it violates their religious principles to do so (as it does for Jehovah’s Witnesses).22
free exercise clause the First Amendment guarantee that citizens may freely engage in the religious activities of their choice
police power the ability of the government to protect its citizens and maintain social order
The Court has gone back and forth on other religious freedom issues as it has struggled to define what actions the state might legitimately seek to regulate. For a while the Court held that any incidental burden placed on religious freedom must be justified by a compelling state interest, that is, the state must show that it is absolutely necessary for some fundamental state purpose that religious freedom be limited.23 How the Court determines what is and what is not a compelling state interest is examined in Chapter 5.
compelling state interest a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently
Snapshot of America: What Do We Believe?
