Religion in the Constitution

The framers of our Constitution very clearly did not want to have an established religion, because in Britain to be a full citizen—that is to have the right to vote, to hold public office, to go to the great universities—you had to belong to the Church of England. If you were Catholic, Jewish, Presbyterian, Methodist, Quaker, you were a second-class citizen.

Britain had religious tolerance. We wanted religious liberty.

Religion is mentioned in the Constitution a couple of times, but mainly in the First Amendment. There are two religion clauses. One is religious liberty, which is pretty broad in the sense that it established the freedom of religion as opposed to religious tolerance. There was no overbearing religion and everything else was tolerated.

Which leads to the second clause, which is the establishment clause, which prohibits the government from establishing a religion. That is not defined, but the Supreme Court has defined it in the last 230 years in decision making.

First Amendment cases really didn’t get focused on until the 20th century. In the 19th century the court is really more concerned with economic and financial issues, with the nation expanding toward the West and transitioning from agriculture to industry.

A landmark case was “Everson v. Board of Education” in 1947. It had to do with government funds in Ewing Township, New Jersey, going to provide safety for children to get to school. Mainly for bus transportation. It covered all children, whether they went to public school or private school, and the private school could be secular or religious. A guy named Arch Everson objected to money going to Catholic schools, primarily. The court, in its decision, said actually funding for public safety for children is constitutional because the government has a duty to provide protection, especially for children.

But in the course of saying that, the justice who wrote the opinion, Hugo Black, wrote what the establishment clause means is the “separation of church and state.” That’s the first time we’d seen that phrase in case law. It had been used earlier. Thomas Jefferson, in a letter to the Danbury Baptist Church in 1803, wrote about the high wall of separation between church and state. That’s where we get the wall of separation metaphor—a different kind of wall.

The way I like to characterize Black’s opinion is that he basically constitutionalized the concept of the separation of church and state as what the establishment clause means. It’s now part of the constitution, and everything else has resulted from that.

The jurisprudence of the court, in terms of religion, is really muddled. On the one hand they’ve tried to set forth general policies, but when you try to apply them to specific instances or events, it doesn’t work.

They had a chance last year in a case called “Masterpiece Cakeshop v. Colorado Civil Rights Commission.” A very devout Christian baker did not want to make a cake for a same- sex wedding based on his religious principles. I thought maybe the court would come up to an answer to the question of how far can you go in terms of your religious principles, but they dodged the issue. They sent it back down for re-argument.

On February 26 the court heard arguments in “The American Legion v. American Humanist Association.” The question in that case is whether a 40-foot-high cross, which was erected in a busy Bladensburg, Maryland, traffic circle in 1925 to honor 49 local soldiers killed in World War I, is an unconstitutional violation of the establishment clause.

Can you actually take out Christian symbolism from the cross? At the time they did this, it was clearly done with a Christian spirit. There were prayers, there were clergy there who dedicated it. They made no bones about it then. You’re talking about the 1920s, which was a long time ago.

The court has come up with a whole bunch of different ways of looking at these issues. One is, does this really advance religion? Some people would say no, it’s been there so long people hardly notice it. Another is, does this endorse religion by government? Is there something coercive about this? After all, you can’t miss it—it’s 40-feet tall.

“ The jurisprudence of the court, in terms of religion, is really muddled. ”

Then there are the people who say we’re a longtime religious people, we have to accommodate religion in the public sphere.

I expect a decision by June 30. To project how the court will rule is always a gamble, but I think they will say this cross has been there for almost 100 years now, it’s fine, and it will get a substantial majority. It’s a question of what is the rationale behind that? Is it only because it’s old? What if this was put up next week?

These questions are moving targets, so they’re always fascinating.