Religious Expression and the American Constitution

by Franklyn S. Haiman

Overview

First Amendment rights have been among the most fiercely debated topics in the aftermath of 9/11. In the current environment and fervor for “homeland security,” personal freedoms in exchange for security are coming under more scrutiny. Among these guaranteed freedoms are the protection of religious expression given by the U.S. Constitution and the constitutional prohibitions against behaviors that violate the separation of church and state. The mandate that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is a general principle that has guided American courts in interpreting the original intent of the First Amendment. In Religious Expression and the American Constitution, Haiman focuses on the current state of American law with respect to a broad range of controversial issues affecting religious expression, both verbal and nonverbal, along with a review of the recent history of each issue to provide a full understanding.

Product Details

ISBN-13:	9781628951783
Publisher:	Michigan State University Press
Publication date:	10/31/2003
Series:	Rhetoric & Public Affairs
Sold by:	Barnes & Noble
Format:	eBook
File size:	378 KB

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Religious Expression and the American Constitution

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By Franklyn S. Haiman Michigan State University Press Copyright © 2003 Franklyn S. Haiman
All right reserved.
ISBN: 978-0-87013-691-7

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Chapter One Historical Background

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Insofar as we know anything about the history of humankind, it appears that the need to engage in religious expression has always been present. African and Native American tribes, the Egyptians, Greeks, and Romans all had their pantheons of gods. In the sixth century B.C. a mystic in India called Buddha (born Siddhartha Gautama) and Chinese philosophers named Confucius and Lao-Tzu gave birth to religions that persist to this day throughout Asia, as has Shintoism in Japan. What is most striking, however, at least to this author, is not so much the universality of the religious impulse but the vast variety of the kinds and names of gods that have been worshipped. This diversity of religious expression has continued into the centuries since the birth of Christ and despite the appearance on the world stage of monotheistic beliefs such as those adhered to by the Jews, Christians, and Mohammedans.

In order to appreciate the complexity of the relationship between religious expression and government in the United States today we must understand something of the background out of which it has grown. It is particularly important to know the essentials of what transpired in the Middle East and Europe long before the Spaniards, English, French, and Dutch set sail for the New World, and to be aware that in many parts of the globe a secular society, where church and state are separate, has never existed or even been sought. Yet since this book is intended to be concerned primarily with issues that engage contemporary Americans, our exploration of history and of lands beyond our borders will be relatively brief.

The most relevant story really begins with the crucifixion of Jesus and the development thereafter of the Christian religion. The books of the New Testament, written by the disciples of Jesus, planted seeds for the centuries of anti-Semitism that followed, for they blamed the Jewish authorities even more than the Roman governor, Pontius Pilate, for the killing of their Messiah. The Christians were themselves, of course, the victims of repression in the Roman Empire until the fourth century, when the emperor Constantine converted, and succeeding emperors made Christianity the empire's official religion. Here we had the beginnings in the Western world not only of divergent religious beliefs but also of often deadly conflict among them.

The books of both Mark (12:17) and Luke (20:25) admonished Christians to "render unto Caesar the things that are Caesar's, and to God the things that are God's," an early version of the concept of the separation of church and state. Yet it was also a central tenet of Christian doctrine that the spiritual realm was of more importance than the worldly or "carnal" realm and thus had primacy. Jews who did not accept Jesus as their savior, and who were seen as more concerned with the here-and-now than the hereafter, were thus relegated to a subservient status.

Another early tenet of Christianity was that theirs was the only "true religion." Therefore Jews were a logical target for conversion or for ostracism from the mainstream of community life. It was not until Mohammed came upon the scene at the beginning of the seventh century that there was another target for Christian animosity. By that time the old Roman Empire had disintegrated and the Byzantium Empire, based in Constantinople, had taken its place. The bishop of Rome, who had not taken on the title of pope until that century, lost his primacy as the spiritual leader of the Catholic world and thenceforth had competitors in Constantinople, which became the birthplace of the present-day Eastern Orthodox Church. We need not go into the details of internecine warfare and the ups and downs of the relationship between emperors and popes that occurred during those centuries in the Byzantium Empire, but simply note that Christianity remained the dominant religious force, although sometimes under the governance of the emperor and sometimes of the pope. Meanwhile, Mohammedanism was growing rapidly in numbers and strength as it conquered lands in Asia Minor.

Mohammed had founded the Islamic or Muslim faith during the A.D. 620s in Medina on the Arabian peninsula and had expanded its reach by defeating the Meccans in battle. Thus Medina and Mecca are today the most sacred sites of the Islamic world. Inevitably the Mohammedans came into military conflict with the Byzantines; then later with the Frankish, Catholic empire of Charlemagne; and ultimately with the Normans of France and England, plus the Roman Catholics of Spain. During the seventh century the Muslims conquered Persia, Syria, and Jerusalem, but failed in their effort to capture Constantinople. In the eighth and ninth centuries they occupied southern Spain and Sicily. Starting in 1096 and stretching into the thirteenth century Christian forces responded with a series of bloody Crusades, battling the Muslims in Asia Minor and re-conquering Jerusalem in 1187. In Spain, Catholics and Mohammedans fought for and divided control of the Iberian Peninsula until the final expulsion of the Muslims at the end of the fifteenth century. The Jews, many of whom had settled in Spain after the Diaspora out of Palestine, were better off (ironically, in view of the present day) in the Muslim than in the Christian territories, where they were subjected to an Inquisition that gave them the choice of converting to Christianity, fleeing, or perishing.

Beginning in 1517, when Martin Luther posted his ninety-five Theses on a church door in Germany, the Protestant Reformation posed a new challenge to the dominance of Roman Catholicism. Still further schisms occurred in the 1530s when King Henry VIII of England broke with the pope, establishing the Anglican Church, and John Calvin, in Geneva, Switzerland, founded Calvinism, the forerunner of the Presbyterian Church in America. Yet one branch or another of Christianity was still dominant in most European countries-Anglicanism in England, Lutheranism in the North German states and Scandinavia, and Roman Catholicism in the southern states of Germany, in France, and on the Iberian and Italian Peninsulas. Thus any separation of church and state was still far in the future, although one might expect that the increasing diversity of faiths would create pressures for such separation, as in fact it ultimately did. In the meanwhile, however, subordination or outright persecution of religious dissenters remained the norm. One of the saddest chapters in the history of state-sponsored religion occurred in the New World in the sixteenth century when Spanish Conquistadors swept through Peru, Central America, Mexico, and what is now the southwestern United States, destroying entire Native American cultures with their military might and superimposing the Catholic faith upon those that remained.

Unlike Catholicism, the Protestant belief in freedom of conscience and individual choice, appended to the traditional Catholic dichotomy between the spiritual and the carnal, did provide a soil in which the concept of separation might grow. Furthermore, Protestants, in contrast to the Catholics of the Spanish Inquisition, believed that Jews and other nonadherents to Christ should be converted by persuasion rather than coercion. Thus dissenters were allowed to survive, albeit as separate members of the community who were commonly despised and degraded. Disraeli, born and raised as a child in the Jewish faith, succeeded in becoming British prime minister in 1868 and 1874 despite the established Church of England, but his family had converted to Christianity when Benjamin was thirteen years old.

The Calvinist Puritans experienced so much discrimination in England, as did their Huguenot counterparts in France, that they sought out the New World as a refuge and founded the Massachusetts Bay Colony. Free as these Pilgrims then were to practice their religion unhindered, they mimicked their European brethren by making their own faiths into established colonial religions with little or no tolerance for those with dissenting views. These Congregationalists, as they were called, were dominant in Massachusetts, New Hampshire, and Connecticut, and banished Roger Williams from Massachusetts because of his "Separatist" brand of Congregationalism. At least Williams, in developing Rhode Island, refrained from making his own Baptist faith into an established church in that colony. Indeed, Rhode Island, Pennsylvania, New Jersey, and Delaware were the only colonies among the original thirteen that never had an established church. Anglicanism was the established church in the colonies of New York, Virginia, North Carolina, South Carolina, and Georgia. Maryland was founded by Lord Baltimore as a haven for Roman Catholics, and passed into the hands of Puritans in 1654, but was restored to the control of Lord Baltimore in 1660.

In an essay entitled "The Bloudy Tenent of Persecution," Roger Williams deplored the fact that "the blood of so many hundred thousands of Protestants and Papists [had been] spilt in the wars of present and former ages for their respect consciences." He went on to write that "an enforced uniformity of religion throughout a nation or civil state, confounds the civil and religious, [and] denies the principles of Christianity and civility." Furthermore, in a letter to John Cotton in 1643, he spoke of "a wall of separation between the garden of the church and the wilderness of the world." Although the metaphor of a "wall of separation between Church and State" is most commonly credited by the U.S. Supreme Court and others to Thomas Jefferson, who used it in a frequently quoted letter to the Baptist Association of Danbury, Connecticut, in 1802, Jefferson may well have borrowed the idea from Roger Williams.

William Penn, a Quaker and the founder of Pennsylvania, likewise believed that there should be no coercion of religious thought. His Great Law of 1682 provided that no persons who acknowledged one God were to be prevented from practicing the religion of their choice. However, only Christians could hold public office in that colony, as was the case in the colonies that had established churches, and, ironically, in Roger Williams's Rhode Island as well.

Massachusetts and Virginia, where the first Europeans settled, were examples, until the time of the American Revolution, of colonies with the least tolerant establishments of religion. The first charter of Virginia called for the "propagating of Christian religion," and in 1624, when King James I made it a royal colony, the Church of England was established as the official religion and people were taxed to support it. Yet soon after the American Revolution, in 1779, Thomas Jefferson proposed a disestablishment bill to the Virginia legislature, which was not adopted. However, the tax to support the Anglican Church was repealed. It is surely not a mere coincidence that by that time there had been a large increase in the number of Baptists in the colony. In 1785 James Madison addressed "A Memorial and Remonstrance against Religious Assessments" to the Virginia General Assembly, and the following year that legislature finally enacted Jefferson's famous "Act for Establishing Religious Freedom," writing the separation of church and state into law. It declared in words now emblazoned on the wall of the Jefferson Memorial in Washington, D.C., that, "it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order." In his "Notes on the State of Virginia," written in 1781, Jefferson had also said: "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg."

On the other hand, in South Carolina, where the Anglican Church had been established at the beginning, as it had been in Virginia, North Carolina, and Georgia, a constitution adopted in 1778 eliminated the Anglican establishment but substituted a Protestant one in its place. "The Christian Protestant religion shall be ... the established religion of this state," it read.

The colony of Maryland, in what was ironically titled its "Toleration Act" of 1649, protected the "free exercise" of religion, but only for those "professing to believe in Jesus Christ." It further provided that anyone who denied Christ "shall be punished by death." The following year a man who is believed to have been the only Jew in the colony was indicted for blasphemy, but he escaped execution, possibly because he converted or because of a general amnesty that had been issued by the British government of Oliver Cromwell.

Massachusetts, where alleged witches had been burned and Roger Williams had been banished, became one of the several colonies during the Revolutionary period to adopt what have been labeled "multiple establishments." This system allowed people to choose which denomination they wished to support with their taxes, but it still had to be within the framework of Protestantism or of Christianity. Article III of the Massachusetts Constitution of 1780 authorized each town within the state to decide on the Protestant sect that would be tax-supported, and many communities where Baptists predominated went that route. The colony of New York had done the same thing in 1664, long before the American Revolution, but also limited the choice to Protestant denominations.

North Carolina was one of the first states after the revolution to disestablish its Anglican church (Virginia, South Carolina, and Georgia following suit in the ensuing two decades) but, like most of the other states, it retained a prohibition against anyone holding public office who denied "the being of God or the truth of the Protestant religion." Despite that barrier, however, the state legislature voted in 1809 to seat a Jew by the name of Jacob Henry who had been duly elected.

In 1833, Massachusetts, by a ten to one margin of the voters to amend their constitution, became the last state in the Union to abolish entirely any establishment of religion, sole or multiple. Maryland had done so in 1810, Connecticut in 1818, and New Hampshire in 1819.

It is undisputed that the creators of our federal government were believers in God and that a majority of them were, to one degree or another, adherents to either a specific Protestant denomination or to Christianity in general. It is also true, as we have already seen, that they had no hesitancy about creating sole or multiple establishments of religion in their respective colonies despite their theological belief in some sort of separation between the spiritual and material worlds and thus between church and state. Yet when it came to the federal government, whose powers were to be limited vis-à-vis the states and the people, their attitude about the role of religion was very different. Although the Declaration of Independence in 1776 began deistically by invoking the name of God, asserting that "men ... are endowed by their Creator with certain unalienable rights," there is no mention of God, let alone of Christianity, in the Constitution that was adopted seven years later. Indeed, there is only one reference to religion in that entire original document, and that is the provision of Article VI that "no religious test shall ever be required as a qualification to any office or public trust under the United States"-a provision in direct contrast to a practice that was taken for granted in most of the colonies. This, like many other parts of the Constitution, may be a reflection of the influence on the founders of the political philosophy of John Locke, whose views were so forcefully articulated in a 1689 "Letter Concerning Toleration." That philosophy is clearly seen in the First Amendment's religion clauses, ratified in 1791, which provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."

The extent to which the United States today should be legally bound by the Constitution and by what its authors intended, or should take into account what their practices actually were regarding religious expression, is a matter of considerable dispute, as we shall see in the next chapter. Part of that debate arises from the circumstance that no one can know with certainty what their intentions were and that, indeed, there were surely different intentions in the minds of the various founders. There are, however, some things that are entirely clear. It is a fact, for example, that despite the prohibition against federal government actions "respecting an establishment of religion," our first presidents (Washington, Adams, and Madison-Jefferson excepted) proclaimed days of prayer and thanksgiving. Furthermore, the same Congress that gave final approval to the phrasing of the First Amendment in 1789 had voted just three days earlier to establish chaplaincies for the House and Senate. President Madison, reflecting on these matters in his retirement, expressed the view that the establishment of the chaplaincies in both Congress and the military, as well as presidential proclamations recommending thanksgivings, had constituted forbidden establishments of religion. He also rationalized his own proclamations for fasting and thanksgiving by claiming that he had "found it necessary" to deviate from "strict principle" because it was a time of war.

(Continues...)

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Table of Contents

Contents Preface Chapter 1. Historical Background Chapter 2. Understanding the First Amendment Chapter 3. Religious Expression in Public Places Chapter 4. Religious Expression in Public Schools Chapter 5. Public Funding of Religious Schools Chapter 6. Historical Issues of Religious Expression versus Competing Social Interests Chapter 7. Current Issues of Religious Expression versus Competing Social Interests Chapter 8. Religious Expression and Political Life Appendix 1. Roger Williams's Bloudy Tenent of Persecution Appendix 2. The General Laws and Liberties of the Massachusetts Bay Colony Appendix 3. Maryland Act Concerning Toleration Appendix 4. John Locke's Letter Concerning Toleration Appendix 5. Thomas Jefferson's Notes on Virginia Appendix 6. James Madison's Memorial and Remonstrance against Religious Assessments Appendix 7. Virginia Act for Establishing Religious Freedom Appendix 8. Thomas Jefferson's Reply to the Danbury Baptist Association Appendix 9. Engel v Vitale Appendix 10. Lemon v Kurtzman Appendix 11. Wisconsin v Yoder Appendix 12. Marsh v Chambers Appendix 13. Lynch v Donnelly Appendix 14. Wallace v Jaffree Appendix 15. Lee v Weisman

Library of Congress Subject Headings for this publication: Freedom of religion United States, Freedom of speech United States, Church and state United States