to corral and control Native American populations in the nineteenth century. As we will see below, the cumulative effect of these rulings and policies has been to permit Christians to follow their beliefs even when they are in violation of some civil laws, but frequently to allow restriction of religious minorities’ ability to practice their beliefs and atheists’ ability to avoid religion in public spaces.
Remember the other function of an optical illusion: It distorts our view of what is right in front of us. In this case, the optical illusion of religious neutrality functions like “color-blind racism.” Color-blind racism is a form of modern racism exemplified by the statement, “I only see you—I don’t see the color of your skin.” By its very logic, color-blind racism requires that individuals pretend a person of color is socially raceless.16 Usually ignorant and naïve rather than malicious, such a stance functions to sustain the White racial dominance by ignoring the continuing effects of historical prejudice and the racially different life experiences of people of color in America today. It is based on the principle that “all people are equal”; while valid, this principle ignores continuing systemic racial inequality. It results in the marginalization and oppression of people of color by failing to acknowledge and respond to their needs, experiences, and identity. It avoids confronting racism and thereby safeguards existing structures of White privilege, which reinforces and maintains White supremacy.
In the same way, pretending that US society is religiously neutral can result in the marginalization of, discrimination against, or even violence toward religious minority communities. It prevents us from addressing genuine inequities and injustices in the lives of religious minorities and from seeing how the design of society and its laws maintains White Christian supremacy. Believing that the reality of religious freedom matches our Constitutional aspirations obscures the Christian privilege and religious oppression encountered by religious minorities. It hides the fact that privilege and oppression are the product of centuries of law, policy, and cultural practices that are still supported by today’s institutional structures. Even in the current century, new laws and leaders continue to reinforce and perpetuate these practices and structures. Christian hegemony remains invisible to people born and socialized into these traditions, assumptions and values, largely because of the optical illusion of American “religious freedom.” Christianity has been rendered invisible, or less visible, because race and racial difference came to replace religion as the nominal reason why freedom and opportunity were extended to some groups and not to others.
Myths and Realities
The American creation myth insists that the Puritans sought religious freedom. Indeed they did, but only for themselves.17 In reality, the colonial period in the Americas was complex, with various groups in search of religious refuge caught in economic as well as religious conflict with each other. The mutual ill will and religious competition among different Protestant Christian faith traditions led the people of New Netherland to cleanse their colony of Lutherans and Quakers, and to try the same with Jews. Name any religious group, and there has been a moment when its members discovered that American “religious freedom” is enjoyed disproportionately or exclusively by Protestant Christians—or, as in New Netherland, by an even more narrowly defined group like the Dutch Reformed Church.
The Puritan presence in New England set the tone and is the basis for the Protestant Christian norms that characterize mainstream White American culture today. Even in the absence of a legally established religion, Protestant mores and ways became the “normal” manner in which things were done in civic America. Most colonial settlers were affiliated with one of a few Protestant faiths, from Puritans in New England to Anglicans, Congregationalists, Lutherans, and others, but there were also others, including Quakers and anabaptists whose “Christianity” was more contested in the eyes of the majority.
The White Protestant Christian ethos of contemporary US life is rooted in this religious competition over a homogeneous religious identity, community control, wealth, and land. Christian norms dictated the rules of political life, from mandatory Church attendance to tax-supported religious institutions. Christianity was regarded as superior to the oral religious traditions of the Native Americans; to the Islamic, animist, or other traditions of enslaved Africans and free Africans; and to the beliefs of immigrants from Jewish and other religious traditions. Even Bible-based religions outside the Protestant norm encountered hostility in government and society.
Throughout the later part of the eighteenth century and well into the nineteenth century, litigation was rarely brought under the religious protection clauses of the First Amendment, either because Protestant hegemony remained unopposed or because oppressed religious minorities, such as slaves and Native Americans, lacked Constitutional protection. Also, it was not until the adoption of the Fourteenth Amendment, after the Civil War, that the Bill of Rights’ reach was extended to protect individuals from the acts of the state governments. Christmas became the only separately recognized federal holiday with a religious basis in 1870. Sunday, the Christian Sabbath, has been recognized as a national day of rest from colonial times; Saturday only joined Sunday as the legally recognized weekend in 1938—and that in response to the demands of organized labor, not religious minorities. From 1793 until at least 1868, the US Capitol building was used as a Christian church, which most of the elected officials attended.18
All the while, religious minorities in most cases did not challenge these policies. Even into the early decades of the twentieth century, Jews were arrested for working on the Sunday Sabbath19 and Jewish children were ostracized and harassed and their parents’ businesses boycotted if they protested public school Christian prayer or Bible readings.20 Overt “No Jews Here” policies in hotels or business clubs, quotas at elite colleges and professional schools—none of these antisemitic practices were constitutionally challenged until the mid-twentieth century.21
Christian Hegemony and the Law
Religion was never meant to be entirely absent from public life. Rather, the Constitutional protections of the First Amendment were meant to prevent the federal government from putting its power behind any specific religion. While successful in preventing the legislative or executive establishment of an officially mandated national religion, such as characterized church and state in the early colonies, Protestant Christianity’s culture and mores have defined US history. Even Jefferson’s Christian-centric word “church” in the phrase “church and state” proves this point. The Protestant norm has shaped laws and court decisions on religious freedom.22
Christian privilege is built into the edifice of American law. Across time and topic, we find the normative power of Christianity, particularly Protestant Christianity, shaping the Courts’ decisions on whether and when the First Amendment protects religion. We see this, for example, in court rulings that rely on the distinction between belief and action. This distinction is an enduring theme connecting Free Exercise cases across numerous decades.23 Protestant religious practice is primarily about holding particular beliefs rather than taking religiously mandated actions, such as wearing a religious head covering, growing one’s hair, or engaging in the consumption or veneration of nature. Of course, there are things that Protestants “do,” such as attending church and participating in the Sacraments, but Protestantism’s religious mandates are more about belief than action. This has shaped, in many ways, what the courts will or will not allow when it comes to religion.
The Supreme Court articulated this action/belief divide in Reynolds v. US (1879) after Congress banned polygamy in 1862. The Court rejected the claims of George Reynolds, a Mormon, that that ban violated the First Amendment. In support of his right to plural marriage, Reynolds had argued that the anti-polygamy statute violated the Free Exercise clause. The high court disagreed, upholding the law by ruling that polygamy was an “action” not a “belief,” that only beliefs are protected by the Constitution, and that polygamy should be restricted for the good of society.24 In other words, Reynolds was free to believe
