GOVT 2305

Religious Liberty - The Establishment and Free Exercise Clauses

In this section I want to focus on the subject of religious liberty, not only nationally, but in the state of

Texas as well. This requires that we also look at the religious conflicts in Britain around the time of the settlement in the New World.

Like many other nations in Europe, Britain witnessed a great deal of

internal religious conflict as a consequence of the Protestant

Reformation.

This was a successful challenge of what had been 1500 years of

dominance by the Catholic Church.

The reformation also had a political aspect since the Catholic Church had political

power in most nations in Europe.

This was what drove the English Reformation. Aside from allowing him to annul a pesky

marriage, the creation of the Church of England, in 1536 allowed for a major expansion in the wealth and power of the Henry VIII and the

monarchy. The monarch became head of the church.

What followed was about 150 years of bloody conflict between

Anglicans and those who wished to restore Catholicism as the official

church. The English Civil Wars were partly fought over it. The battle

would not be resolved until James II was deposed and the British Bill

of Rights was signed.

The Church of England would become the established church of Great Britain with the monarch at

its head.

As a consequence, a Catholic can not be monarch in Great Britain.

But the fight between the Catholics and Anglicans wasn’t the only battle raging. There were internal battles

among Protestants.

Puritans – who followed the teachings John Calvin – also battled the

Anglicans. They thought they were still too Catholic.

This conflict would be translated to the colonies since Anglicans

founded some colonies – notably Virginia – and Puritans other –

notably Massachusetts.

Puritans would organize themselves as Congregationalists, meaning that they were organized such that every church

congregation was independent. The congregation controlled the church.

Anglican churches were hierarchical – similar to the structure of the Catholic

Church.

This is an important point because aside from differences regarding doctrine, the difference between these two different types of protestant churches was also a

difference in governing.

Should government be top-down (hierarchical) or bottom up (democratic)?

It is commonly argued that many people emigrated to the North American Colonies in order to

practice their religious beliefs as they choose.

This isn’t entirely true – many colonies mandated religious beliefs

and practices.

Each colony had its own charter which established its own religious

principles.

Most colonies had an established religion, and many required church

attendance. For a great look at each, click here.

Some readings:

- Religion and the Founding of the American Republic

- Religion in Early America

Generally religious freedom did not mean the right to not believe

in a deity, but to be free to worship in whatever denomination

one choose.

Religious freedom in these cases generally meant religious

neutrality.

The dominant denominations were the Anglican Church and the

Congregational Church.

Those that were most protective of religious freedom were:

Rhode IslandPennsylvania

Rhode Island was founded by Roger Williams to be a refuge for religious

minorities. Williams had been expelled from Massachusetts for advocating

Separatism, stating (among other things) that the government has no right to

enforce Biblical doctrine. Some argue this was a version of what would later become the principle of the separation of Church

and State.

Here’s an essay he wrote on the subject: The Bloudy Tenent of

Persecution (1644).

Click here for a more contemporary analysis.

"First the faithful labors of many Witnesses of Jesus Christ, extant to the world, abundantly proving, that the Church of the

Jews under the Old Testament in the type, and the Church of the Christians under the New Testament in the Antitype, were both

separate from the world; and that when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, and made his

Garden a Wilderness, as at this day. And that therefore if he will ever please to restore his Garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world,

and that all that shall be saved out of the world are to be transplanted out of the Wilderness of the world, and added unto

His Church or Garden." – Roger Williams

Pennsylvania was founded by William Penn, who had converted to Quakerism as a young man in Britain. Quakers were commonly persecuted in Britain and in the

colonies.

They were banished from Massachusetts, those who returned were executed.

Read up here on the Boston Martyrs, four Quakers who were hung in Boston in the mid 1600s

for being Quakers.

His trial in Britain for illegally preaching Quakerism is one of the

more famous trials in history.

Fortunately for him, Charles II owed his father a lot of money and granted him a colony to wipe out

the debt.

This became Pennsylvania.

Sweet, huh?

The colony would allow for complete freedom of religion, as long as people believed in God.

Most colonies required religious belief of some sort, and commonly restricted political participation to those who were members of the

established church.

The point is that not all colonies practiced religious freedom.

Religious beliefs and practices were imposed in many – but not

all. Catholics and Jews were usually restricted from voting.

Dissent was often not tolerated.

Examples of Intolerance

- Catholic Church in the Thirteen Colonies.

- History of Jews in Colonial America.

The point is that each colony had its own religious principles embedded in its

charter, and these principles would be retained in their Constitutions once they

became states. They tended to be protective of these principles

The US Constitution had to be written in a way that was neutral to the religious

interests of each state.

A nationally established religion would inevitably favor one denomination over others.

It could also rule on the religious practices of other denominations.

This helps explain why the First Amendment begins by stating that

Congress cannot pass laws on either the establishment or the

free exercise of religion.

Note that this only restricts the ability of the national government

to establish a church.

Some states continued to have established churches, and would

continue to have them for decades.

Connecticut had a state sponsored church until 1818

Massachusetts had one until 1833.

As with other aspects of the Bill of Rights, the states would not be

prevented from having established churches until the 14th Amendment was ratified. The freedom people

had from national power over religion also applied to states.

By then most states had stopped having tax payer funded,

established churches.

Prior to the addition of the Bill of Rights, the US Constitution

contained brief language related to religious freedom.

These are contained in the No Religious Test Clause.

Article 6, Clause 3

The Senators and Representatives before mentioned, and the Members of the several

State Legislatures, and all executive and judicial Officers, both of the United States and of the

several States, shall be bound by Oath or Affirmation, to support this Constitution; but no

religious Test shall ever be required as a Qualification to any Office or public Trust under

the United States.

The most obvious component of this is that people do not have to be a member of a specific religious denomination in order

to hold public office.

There also a very subtle statement in the clause. Office holders shall “be bound by

Oath or Affirmation, to support this Constitution.”

An oath has a religious connotation. Usually it is a promise

that is considered sacred and made before God or a deity of

some sort.

An affirmation tends to not have religious meaning.

The most famous oath is the one the President takes when is sworn

into office.

Article 2, Section 1, Clause 8

Before he enter on the Execution of his Office, he shall take the following Oath or

Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the

Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the

United States."

Note that there is no requirement that oath be taken on a Bible or that the oath should conclude with “so help me God.”

There’s ongoing dispute about whether George Washington used the phrase.

There is no record of President’s doing so until Lincoln in 1865. Hoover did not use

the phrase, but every President since has.

In 2009, the DC Court of Appeals dismissed a lawsuit claiming that “so help me God” – among other religious phrases and practices in governmental institutions violates

the establishment clause.

George Washington did swear on a Bible however. Not all Presidents

have however. John Quincy Adams took the oath on book of law.

Franklin Pierce was the only President to affirm the oath.

In the previous section we looked at the US Bill of Rights. These are

the two parts which establish religious freedom:

The Establishment ClauseThe Free Exercise

Here they are in context:

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

This is where the bulk of controversy associated with religious liberty stems from.

What in fact does “establishment” and “free exercise” mean? Are

there no restrictions that can be placed on either?

What is the simple meaning of each clause?

The Establishment Clause is meant to ensure that a national religion will not be created by Congress and that no preference will be

given to one religious denomination over the others.

The Free Exercise Clause is intended to protect the rights of people to practice their religious

beliefs as they see fit.

These are the two parts of the Constitution that Thomas Jefferson

argued created a “wall of separation” between church and

state.

(remember that Roger Williams used this description as well)

Some background on the phrase “wall of separation between

church and state.

An overview from Findlaw.

Jefferson was responding to a letter written to him in 1801 by the Danbury

Baptists Association of Connecticut after his election to the Presidency.

Baptists were an unpopular minority religion in the state. They were concerned about the status of their religious liberties.

The correspondence is remarkable short and concise.

Read their letter here:

Danbury Baptist Association of Connecticut to Thomas Jefferson.

“Our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on

account of his religious opinions--that the legitimate power of civil government

extends no further than to punish the man who works ill to his neighbors; . . .

. . . But, sir, our constitution of government is not specific. Our ancient charter together with

the law made coincident therewith, were adopted as the basis of our government, at the time of our revolution; and such had been our

laws and usages, and such still are; that religion is considered as the first object of legislation;

and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these

favors we receive at the expense of such degrading acknowledgements as are

inconsistent with the rights of freemen.”

They are asking Jefferson whether, in his view, their religious rights

were unalienable, or subject to the decisions of the majority?

Note that at this point the national Bill of Rights did not apply to the

states.

Click here for Jefferson’s reply. (see the unedited text here)

Here’s an essay from the Library of Congress on the subject.

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or

his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared

that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus

building a wall of separation between Church & State. . . .

. . . Adhering to this expression of the supreme will of the nation in behalf of

the rights of conscience, I shall see with sincere satisfaction the progress

of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in

opposition to his social duties.”

People have debated the nature of this “wall” ever since.

Is it impermeable? Permeable? Does it restrict religious content in

public matters or does it simply mandate neutrality?

Let’s look a bit more in-depth into the history of the establishment

and free exercise clauses.

How have they been interpreted by the courts?

1 – The Establishment Clause

For general information:

- Exploring Constitutional Conflicts.- First Amendment Center.

- The Founder’s Constitution.- FindLaw.

- Wikipedia.

Also, From the Bill of Rights Institute:

Landmark cases regarding the Establishment Clause.

What does ”establishment” mean?

''[F]or the men who wrote the Religion Clauses of the First

Amendment the 'establishment' of a religion connoted sponsorship,

financial support, and active involvement of the sovereign in

religious activity.'' - Findlaw.

But does this simply mean no funding for churches, or for

anything that a religious institution might choose to fund?

Like a school?

Over time, it has involved a variety of other questions.

School PrayerPublic Displays of Religious Symbols

CreationismStudent Initiated Religious Speech

Let’s walk through a few recent Supreme Court cases that

adjudicated disputes regarding claims that government had

violated the establishment clause.

Here’s a controversy: Considering that Jews, Catholics and

Protestants have different versions of the Ten Commandments, does a

public school give priority to one over the others if it displays one?

Click here for details.

1947: Everson v. Board of Education

A New Jersey taxpayer sued the state because it was reimbursing

the transportation costs of parents who were sending their students

to religious schools. This amounted to state support of religion.

The Supreme Court disagreed.

The majority argued that transportation was not a religious function, so it was not a

violation of the establishment clause.

The court did rule that the separation established in the US Constitution applied

to the state Constitutions, which incorporated the establishment clause to

the states.

1971 – Lemon v Kurtzman

The case involved a dispute over the constitutionality of a

Pennsylvania program designed to provide support for religious

schools – to make up the difference in pay between the two.

- See Oyez.

The court argued that it the program was unconstitutional and set up a 3 part test to guide future

decisions.

For a law to be considered constitutional under the Establishment Clause of the First Amendment, the (1)

law must have a legitimate secular purpose, (2) must not have the

primary effect of either advancing or inhibiting religion, and (3) must not

result in an excessive entanglement of government and religion.

This is the Lemon Test.

Its been modified somewhat in recent years, but it is still useful in

understanding how the court approaches establishment clause

issues.

There are other tests as well

The Coercion Test

This was developed in the case of Lee v. Weisman (1992).

Government policy cannot coerce individuals to participate in a

religious exercise.

"Unconstitutional coercion occurs when: (1) the government directs

(2) a formal religious exercise (3) in such a way as to oblige the participation of objectors."

The Endorsement Test

This was established in the case of Allegheny County v. ACLU (1989).

A government sponsored practice is unconstitutional “if it unconstitutionally

endorses religion by conveying a message that religion is 'favored,' 'preferred,' or

'promoted' over other beliefs."

Here are a handful of other cases:

Engle v. Vitale: Government-directed prayer in public schools violates the

Establishment Clause of the First Amendment, even if the prayer is

denominationally neutral and students may remain silent or be excused from

the classroom during its recitation.

Marsh v. Chambers: The practice of hiring a chaplain for the

Nebraska state legislature did not violate the Establishment Clause of

the First Amendment.

Van Orden v. Perry: A Ten Commandments monument erected

on the grounds of the Texas State Capitol did not violate the

Establishment Clause, because the monument, when considered in

context, conveyed a historic and social meaning rather than an intrusive

religious endorsement.

Kitzmiller v. Dover Area School District: Teaching intelligent design in public school biology classes violates the Establishment

Clause of the First Amendment to the Constitution of the United States (and Article I, Section 3 of the Pennsylvania State Constitution) because intelligent

design is not science and "cannot uncouple itself from its creationist, and thus

religious, antecedents."

Santa Fe ISD v Doe – The Supreme Court argued that student led prayer at football games was

unconstitutional.

This may be worth a look:

The Constitutional Politics of the Establishment Clause

free exercise

Links:

- Wikipedia.- Exploring Constitutional Conflicts.

- First Amendment Center.- FindLaw.

Also, From the Bill of Rights Institute:

Landmark cases regarding the Free Exercise Clause.

What does “free exercise” mean?

When is it appropriate to place limits on the free exercise of

religion?

Here is a classic case:

Reynolds v. United States: Religious duty was not a suitable defense to a criminal indictment.

1940 – Cantwell v. Connecticut

Connecticut passed a law requiring people who solicited for religious purposes to have a license to do

so. The case focused on Jehovah’s Witnesses who were proselytizing

in a neighborhood with many Catholics. They sued that their free exercise rights were being denied

by the state.

The Supreme Court agreed. They argued that while the maintenance of

public order was a legitimate state interest, local officials could not

determine what solicitations were religious, and which ones were not. They could not suppress the “free

communication of views.” – see Oyez.

This decision incorporated the free exercise clause to the states.

Areas of recent dispute:

Medical Assistance for ChildrenPeyote Use

Animal Sacrifices

Employment Division, Department of Human Resources of Oregon v. Smith: The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus

to deny unemployment benefits to persons discharged for such use." Neutral laws of general applicability do not violate

the Free Exercise Clause of the First Amendment.

Church of Lukumi Babalu Aye v. City of Hialeah: The states cannot

restrict religiously-mandated ritual slaughter of animals, regardless of

the purpose of the slaughter.

Since it applies to this topics, let’s also look at the religious content of

the Texas Bill of Rights so we can see how the state treats religious issues as opposed to the national

government.

To read the entire thing, click here:

The Texas Bill of Rights

It is a far more detailed and specific document than the US Bill

of Rights.

In 2306 we will note that this is the case for the entire Texas

Constitution. It is long, wordy, cumbersome and confused.

Religion is covered in four sections: 4 – 7.

Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of

a Supreme Being.

Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to

give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most

binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.

Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the

dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any

case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever

be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the

peaceable enjoyment of its own mode of public worship.

Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be

appropriated, or drawn from the Treasury for the benefit of any sect, or religious

society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.