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Religion And The U. S. Supreme Court

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Religion And The U. S. Supreme Court

by Bill Schultz

Table of Contents

Introduction

When our federal government under the Constitution was ultimately designed by our founding fathers, it was intended to be a stronger central government than that which existed under the provisions of the Articles of Confederation, adopted in 1781. But the Constitution was most certainly not intended to replace the sovereignty of the individual states with a single national sovereignty. The national government was to have strictly limited powers, with all other powers reserved to the individual states, or to the people of those states. (c.f. the 10th Amendment. Accordingly, the prohibition in the 1st Amendment with respect to prohibiting the “establishment” of religion by congress, or prohibiting congress from constraining the “free exercise” of religion, were originally viewed as defining religion as one of those areas which the federal government would leave totally up to the individual states to regulate. This view must necessarily be supported by the numerous provisions respecting religion which appear in the various versions of state constitutions adopted after the adoption of the U. S. Constitution in 1789 and before the adoption of the 14th Amendment thereto.

The 14th Amendment is a great example of the Law of Unintended Consequences. Some business interests, in an effort to gain freedom from certain restrictions upon businesses imposed by the several states, proposed that the 14th Amendment include a broad federalization of rights, such that any right available to anyone in any state would then necessarily be available to all citizens of all states. Only a few years after the ratification of the 14th Amendment, the Supreme Court refused to recognize this broad federalization of rights, effectively declaring a portion of an amendment to be “unconstitutional.” Nonetheless, the overbroad language of the 14th Amendment gives license to just about anybody to argue that their particular situation merits review by the U. S. Supreme Court on some grounds related to the 14th Amendment! The vast majority of 1st Amendment challenges brougnt to court in the 20th century involved using the 14th Amendment to bootstrap the 1st Amendment into some matter which would otherwise be totally within the jurisdiction of state law. Thus, what was originally envisioned strictly as a restriction upon congress is now viewed as a restriction upon any and all “state actors,” which includes any person whose pay originates with the treasury of the several states or any of their subsidiary jurisdictional bodies.

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The Legacy of the Founding Fathers

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The “Sleeping Dog” 14th Amendment

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An Era Of Religious Orthodoxy

The last half of the 19th century was marked by several decisions of the United States Supremem Court which were remarkably insensitive in their broadly-Christian assertions to various non-Christian minorities. Among those decisions was a pair of cases involving criminal charges of polygamy by adherants of “traditional” Mormonism, one arising from the State of Utah and the other arising from the State of Idaho (while each were territories under the administration of the United States). The first case was Reynolds v. United States, 98 U.S. 145 (1878), and it was the first case to (some claim erroneously) tie Thomas Jefferson’s Letter to the Danbury Baptists (January 1, 1802) into the interpretation of what the “separation of church and state” meant when construing matters of constitutional law. Over a decade later, in Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299 (February 3, 1890), the Supreme Court relied upon Reynolds in order to reach the same result. The text of this decision is easy to read, and it embodies a clear antagonism to those religious beliefs of minor sects which offend the mainstream morality of the Christian majority. Just read it for yourself:

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases. The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislantion. There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes, as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.

The key holding for the above decision is that no religious belief could excuse the fact that some carrying-out of that belief (as a “religious practice”) if it is found to have violated some general law enacted by the state. This is entirely consistent with the dichotomy in the law as expressed by President Jefferson on January 1, 1802 in his famous Letter to the Danbury Baptists where Jefferson stated “that the legislative powers of government reach actions only, and not opinions.” So, the government could not outlaw opinions, but it could outlaw any actions taken based upon those opinions, and as recognized above, even teaching, advising, and counseling the breaking of the laws against polygamy was itself unlawful, in spite of any First Amendment considerations. (“If [bigamy and polygamy] are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases.”) This was an era long before it was acceptable to speak in advocacy against any given law, which is now seen as part and parcel of our modern First Amendment legal protections. In the era under discussion, advocating any sort of illegal activities was itself “criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases.” Looking back over a century ago, we can see that, in spite of the First Amendment, the religious “thought police” were in full force and effect.

For many years, the guiding principles of the law were almost always presumed to be Christian in nature, in spite of the fact that our founding fathers went out of their way to avoid any and all declarations of Christian values in our Constitution. This though probably reached its peak in Justice Brewer’s written decision for Holy Trinity Church v. United States, 143 U.S. 457, 12 S. Ct. 511. In that opinion, Justice Brewer reviewed numerous instances of religious language contained within the charters of the various colonies, the constitutions of the various states, and even the Constitution of the United States, and then ended up asserting:

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that, “Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.” And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on American law, speaking as chief justice of the supreme court of New York, said: “The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of those doctrines in not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. * * * The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.” And in the famous case of Vidal v. Girard’s Ex’rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provisions for the creation of a college into which no minister should be permitted to enter, observed: “it is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.”

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The first touchstone of constitutional jurisprudence for so-called substantive due process and noneconomic liberty was the case of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923), which declared the scope of “liberty” protected by the Fourteenth Amendment:

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [Citations.] The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. [Citation.]

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The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. … But the means adopted, we think, exceed the limitations upon the power of the state and conflicts with rights assured to plaintiff in error. The interference is plain enough and no adequate reason therefor in time of peace and domestic tranquility has been shown.

The above quote clearly demonstrates that there is a core of rights of “liberty” which the state cannot interfere with, except as might be justified in time of war or similar emergency. This is the essential concept of what is now called.

The second touchstone of constitutional jurisprudence for so-called substantive due process and noneconomic liberty was the case of Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925), which built upon the doctrine announced by Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923) with these words:

As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Similar words can be set forth with respect to virtually every one of the enumerated “liberties” guarenteed by the Fourteenth Amendment. The government has the right to pass legislation, but in non-emergency times that right is circumscribed by the guarantees of the Fourteenth Amendment and, even in emergencies, the specific infringements upon liberty must be narrowly tailored to deal with the actual emergency confronting the state or nation. These concepts are the cornerstones of virtually all rights recognized by the Constitution. Some rights are capable of greater infringement by the government and some, such as the freedom to believe in virtually anything and speak of nearly anything in which one believes, are less capable of infringement, even in emergencies. This pertains because of the broad agreement that diversity gives us strength, and the realization that he who would seek to oppress his opponant today might himself be oppressed tomorrow.

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It is interesting to note that the first Supreme Court decision to sanction using tax money to benefit children attending private schools actually was handed down in 1930. The case of Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 (April 28, 1930) will show up as a precedent for later cases approving aid which does not directly aid the religious mission of private schools.

The decision in Holy Trinity Church v. U. S. was cited only once by the U. S. Supreme Court for the proposition that the United States was populated by a “Christian people,” but that citation was in a case which upheld the rights of the government as superior to the rights of the individual on any matter of a privilege granted by the governemt. The case was United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570 (May 25, 1931). There is very little dealing with this issue, so it is quite easy to quote it completely:

The applicant for naturalization here is unwilling to become a citizen [and] to leave the question of his future military service to the wisdom of Congress, where it belongs, and where every native-born or admitted citizen is obliged to leave it. In effect, he offers to take the oath of allegiance only with the qualification that the question whether the war is necessary or morally justified must, so far as his support is concerned, be conclusively determined by reference to his opinion. When he speaks of putting his allegiance to the will of God above his allegiance to the government, it is evident, in the light of his entire statement, that he means to make his own interpretation of the will of God the decisive test which shall conclude the government and stay its hand. We are a Christian people (Holy Trinity Church v. United States. 143 U.S. 457, 470, 471 S., 12 S. Ct. 511), according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God. But, also, we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.

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It is not within the province of the courts to make bargains with those who seek naturalization. They must accept the grant and take the oath in accordance with the terms fixed by the law, or forego the privilege of citizenship. There is no middle choice. If one qualification of the oath be allowed, the door is opened for others, with utter confusion as the probable final result.

Accordingly, the Macintosh court found that the refusal of the prospective citizen to take the oath without an unequivocal submission to the laws of the United States was inconsistent with that person’s application for the privilege of citizenship, in spite of any validity to the religious claims which underlay the refusal to take an unconditional oath.

On the other hand, towards the end of this period when the U. S. Supreme Court was upholding supposedly neutral strictures on religious practices, a case of a group of ‘Jehovah’s Witnesses’ came up for review as they had been convicted of criminal activity arising from their attempts to gain converts to their religion. In Cantwell v. Connecticut, 310 U.S. 296 (May 20, 1940) these convictions were overturned on First Amendment grounds. This case arguably sets the stage for the “great change” which occurs just three years later. It reads:

We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.[Footnote ommitted.] The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.[Footnote ommitted.] The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, be statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee.[Footnote ommitted.] It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation.

In Cantwell, supra, the Supreme Court invalidated a law because, as it was applied to the Jehovah’s Witnesses, it deprived them of the right to solicit converts to their point of view without first obtaining a license from the state. Since the obtaining of a license imposed no restrictions on the time, place, and manner of solicitation, the requirement of obtaining a license was held to be an impermissible intrusion into the practice of the religion of the Jehovah’s Witnesses. As noted above, this is really the beginning of recognition for the religious rights of individuals as being superior to the allegedly “neutral” governmental laws and regulations.

The Great Change

There was a great change in the way that the U. S. Supreme Court viewed matters of religion, and that change didn’t come about where many people believe it did. The actual turning point came between 1940 and 1943 when the U. S. Supreme Court first issued a ruling allowing the expulsion of children of Jehovah’s Witnesses for their refusal to participate in the Pledge of Allegience, and then just three years later, overrode that decision and reversed course by declaring that the state could not force the children of Jehovah’s Witnesses to participate without violating their rights under the 1st Amendment.

The first case decided was Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940). In that case, two children of ‘Jehovah’s Witnesses’ were expelled from school “for refusing to salute the national flag as part of a daily school exercise.” These children “had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by command of scripture.” The question presented for decision was “whether the requirement of participation in such a ceremony, exacted from a child who refuses upon sincere religious grounds, infringes without due process of law the liberty guaranteed by the Fourteenth Amendment.” The basic principles enforced in this case were of longstanding duration, and were stated as follows:

The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.[Footnote omitted.] The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. … In all these cases the general laws in question, upheld in their application to those who refused obedirence from religious conviction, were manifestations of specific powers of government deemed by the legislature essential to secure and maintain that orderly, tranquil, and free society without which religious toleration itself is unattainable. Nor does the freedom of speech assured by Due Process move in a more absolute circle of immunity than that enjoyed by religious freedom.

The dissent of Justice Stone would set the stage for the reversal of course, a mere three years later:

The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions. It is not denied that such compulsion is a prohibited infringement of personal liberty, freedom of speech and religion, guaranteed by the Bill of Rights, except in so far as it may be justified and supported as a proper exercise of the state’s power over public education.

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For this reason it would seem that legislation which operates to repress the religious freedom of small minorities, which is admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of religious and racial minorities.

With such scrutiny I cannot say that the inconveniences which may attend some sensible adjustment of school discipline in order that the religious convictions of these children may be spared, presents a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy of constitutional protection.

Three years later, the above case was overturned by West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943). The majority opinion viewed things this way:

This case calls upon us to reconsider a precedent decision, as the Court throughout its history often has been required to do.[Footnote omitted.] Before turning to the Gobitis case, however, it is desirable to notice certain characteristics by which this controversy is distinguished.

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

As the present Chief Justice said in dissent in the Gobitis case, the State may ‘require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country.’ 310 U.S. at page 604, 60 S.Ct. at page 1017, 127 A.L.R. 1493. Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected[Footnote omitted] route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.

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It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.[Footnote omitted.]

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

On that same day, the Supreme Court decided Taylor v. Mississippi, 319 U.S. 58 (June 14, 1943). There, a number of Jehovah’s Witnesses had run afoul of a law in Mississippi prohibiting anyone from speaking or writing anything that would “encourage violence, sabotage, or disloyalty to the government of the United States, or the state of Mississippi.” The Jehovah’s Witnesses encourage people to not salute any flag, and this was specifically listed as a violation of the law. Here, the Supreme Court found:

The statute as construed in these cases makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the future of our own and other nations. As applied to the appellants it punishes them although what they communicated is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state,[Footnote omitted] or to have threatened any clear and present danger to our institutions or our government.[Footnote omitted] What these appellants communicated were their beliefs and opinions[Footnote omitted] concerning domestic measures and trends in national and world affairs.

Of course, the above decision was a precursor of the later decision allowing flag burning as a means of protest, a matter which has led to proposals for a Constitutional Amendment to overturn that idea. But again, this case represents a dramatic turn-around, allowing individuals to be disrespectful of their government in their public communications, in spite of any law demanding respect. This is a related First Amendment principle to the freedom of religion, so we will frequently encounter more than just religious issues in Supreme Court cases.

I call this dramatic turn-around between 1940 and 1943 the “great change” in First Amendment jurisprudence because it represents a turning-away from the principle that the government is right unless it intrudes upon a specifically granted right of the people and a turning-to the principle of the individual’s rights as representing limitations upon the government. This is almost a 180-degree change in the law, and virtually all First Amendment jurisprudence since thist point has been decided differently than it would have been decided under prior law. The new standard of law thus imposed is as follows (my words):

While the government may sometimes condition some privileges upon the performance of a religiously-objectionable duty, in no case my the government require a person to recite any sort of religiously-objectionable speech, or to advocate or support in any way, including through the expenditure of any tax dollars, any objectionable religiously-centered activities, unless the benfit to religion is merely incidental to a government program for the general welfare of a substantial group.

If an atheist finds themselves attending a meeting of a body which observes “traditional” opening and closing ceremonies, all they can do is object through the usual process of political protests, and in at least that sense, the objectors must tolerate these sorts of ceremonies as a condition of exercising their civic rights. The courts have never gone so far as to overturn practices which were clearly in place prior to the Constitution, were continued without interruption after the adoption of the Constitution, and were therefore clearly deemed by the founding fathers as to not be prohibited by the Constitution. Among these is the practice of paying for Chaplains for Congress and for the military. But no matter what the ceremony, the participation by individuals must necessarily be optional because forced speech is generally abhorrant to the Constitution. Still, that concept of “no forced speech” does not extend to the matter of so-called “loyalty oaths” which became common in the aftermath of World War II as the tensions of the Cold War created fear in the hearts of many Americans. Those oaths were generally upheld in concept, although many specific oaths were overturned due to wording problems, generally by not distinguishing between “innocent involvement” and “deliberate intent.”

But I would be remiss if I didn’t pause here to thank those ever-persistant Jehovah’s Witnesses for challenging various laws time and time again, until they finally managed to put an issue before the Supreme Court which caused this dramatic shift in the law. But of course, this great change was just beginning, and the floodgates of litigation had now been opened. From this point forward, on an average of once a term, the U. S. Supreme Court will take a case which will further re-define the new but nebulous barrier of separation between church and state.

The Changed Law Evolves

The reversal in the law expressed itself next in Girouard v. United States, 328 U.S. 61 (April 22, 1946). Whereas a series of cases (some discussed above) had held that a religiously objectionable oath could be required as a condition for obtaining the benefit of citizenship, the new makeup of the Supreme Court suddenly discovered that “[t]he test oath is abhorrent to our tradition” and proceeded to invalidate its own prior holdings in United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448 (May 27, 1929), United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.E. 1302 (May 25, 1931), and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569 (May 25, 1931). When you begin to find massive numbers of prior cases overturned, one or more of which are decades old, you know that there has truly been a substantial paradigm shift in the law of the land. So it was here, and once again the new standard was emphasized that government may not require any person to make an expression (or oath) against their own religious beliefs no matter how important the national need was for the person to do so.

The next case was probably the second in a near tidal wave of claims that taxpayer money was going to support some form of religious indoctrination in violation of the “establishment clause” of the First Amendment. The issue was whether the State of New Jersey could properly subsidize the bus fares of parochial school children as part of a general subsidy of bus fares for all school children in the state. In Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947) the action by the State of New Jersey was upheld. But along the way, an important reiteration of principle was stated thusly:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ Reynolds v. United States, supra, 98 U.S. at page 164.

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The State contributes no money to the [religious] schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.

In Everson, supra, the Supreme Court that the particular program in question did not actually benefit the religious schools because all it did was aid the children to get to the accredited schools of their choice. The beneficiaries were thus the children and their parents and not the religious schools themselves. This is an important distinction to remember as we work ourselves towards modern times. Meanwhile, it would appear that many people thought the expansive holding in Everson, supra, was “mere dicta” (“dicta” is literally “words,” but in the context of a court’s legal opinion, it means “non-binding words in an opinion issued by a court”). Just a year later, the Supreme Court decided Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (March 8, 1948), which reaffirmed the expansive language of Everson, supra, as being fully the law of the land and not to be ignored. Finally, in the case of Zorach v. Clauson, 343 U.S. 306 (April 28, 1952) the Supreme Court again reaffirmed the same overall principles of law, while allowing so-called “released time” religious education to proceed in New York at no cost to the taxpayers and in facilities which were in no way owned or controlled by the State. (There are many “released time” activities in American schools, including “work release” programs where school kids can keep jobs. This decision does not seem to me to impermissibly advance the cause of religion.)

However, somewhat more troubling is the re-assertion of some sort of vague notion of an approved national religion of common values by the Zorach opinion, as then later mentioned by Chief Justice Berger in his lead opinion for Walz v. Tax Comm’n of New York City, 397 U.S. 664 (May 4, 1970). In Zorach, supra, Justice Douglas (of all people! but then, it was 1952…) wrote that “We are a religious people whose institutions presuppose a Supreme Being” in his majority opinion. He rejected the idea that the U. S. Supreme Court should “find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.” That is, at least, a thoughtful idea which you should perhaps read for yourself:

There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the “free exercise” of religion and an “establishment” of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other – hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths – these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: “God save the United States and this Honorable Court.”

We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds. The nullification of this law would have wide and profound effects. …

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here.

With this opinion in Zorach, supra, the Supreme Court backed away from the very expansive language of Everson and McCollum and tried to steer back towards some sort of middle ground that was more accomodating of religious practices and beliefs, while still prohibiting governmental support or enforcement of religious activities.

In the meantime, the Supreme Court was also busy with more cases involving the Jehovah’s Witnesses. In Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951) and again in Fowler v. Rhode Island, 345 U.S. 67 (March 9, 1953) the Supreme Court held that local regulations on the use of their public parks were being unfairly applied to the Jehovah’s Witnesses and that this, in turn, violated the rights of the Witnesses under the First and Fourteenth Amendments.

But not every vestige of institutionalized religious observance would be declared unconstitutional. In McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), the lead case in a series of cases from around the country which challenged various so-called “blue laws” (or “Sunday closing laws”), the Supreme Court upheld those laws primarily out of their traditional aspects rather than recognizing Sunday as a peculilarly Christian day to be set aside. The dissent by Justice Douglas took the Court to task for that, but it would be left for another day to overturn these sorts of laws (primarily due to lobbying pressures from business interests, as things would work out).

We now come to what most people recognize as the the next significant landmark case in First Amendment jurisprudence. However, it appears to me to have been all but decided by the change in the law recognized by the Barnette court, supra. I speak of course of Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961) wherein the plaintiff (Torcaso), having been appointed to the office of Notary Public by the Governor of Maryland, refused to declare his belief in God as required by the Constitution of Maryland. Torcaso sued, and the Maryland courts denied relief, but the U. S. Supreme Court reversed on the grounds that the Maryland constitutional requirement “unconstitutionally invade[d Torcaso’s] freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States.” The holding in Torcaso, supra, was aided by a decision invalidating a firing of certain public employees on the grounds they refused to execute a constitutionally overbroad loyalty oath. That decision was in Wieman v. Updegraff, 344 U.S. 183 (December 15, 1952). Torcaso, supra, marked a complete turn-around from the 1892 decision in Holy Trinity Church which cited to that exact requirement of the Maryland Constitution as evidence for the proposition that the United States is a “Christian” nation. After Torcaso, supra, even atheists could serve in the government without fear of unjust dismissal due to a failure to profess a belief in God.

The door to recognizing atheism as a protected belief had opened up, and the very next year, Engel v. Vitale, 370 U.S. 421 (June 25, 1962) inflicted the first substantial setback upon those who would use the public schools as halls for religious indoctrination. The main holding reads:

The petitioners contend among other things that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

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New Laws Against Religious Discrimination

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The Modern Teeter-Totter

While it is not one of the recent cases which have so fractured the modern Supreme Court, as Justice Blackmun’s opinion for Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (February 21, 1989) will demonstrate (below), Walz v. Tax Comm’n of New York City, 397 U.S. 664 (May 4, 1970) certainly did confront the issue of the “teeter-totter” effect between the two religion clauses of the First Amendment. In that case, Chief Justice Burger wrote:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated; but the purpose was to state an objective not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court’s opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. …

…

Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice.

Adherents of particular faiths and individual churches frequently take strong positions on public issues including, as this case reveals in the several briefs amici, vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right. No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts-one that seeks to mark boundaries to avoid excessive entanglement.

The modern era has seen an extremely fractured Supreme Court decide matters without giving any clear guidance. One example of this is its decision in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (February 21, 1989) which overturned a Texas sales tax which exempted religious publisher, but which did not obtain any consensus from the various Justices as to exactly why that law must be overturned. The lead opinion received the votes of only three Justices, Brennan, Marshall, and Stevens. Justice White concluded that Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (April 22, 1987) decided the matter and that nothing further needed to be said. The most interesting opinion, from my point of view, is that by Justices Blackmun and O’Conner which finally notes the overall “teeter-totter” effect we see in decisions involving the separation of church and state. Justice Blackmun wrote:

I find it more difficult to reconcile in this case the Free Exercise and Establishment Clause values. The Free Exercise Clause suggests that a special exemption for religious books is required. The Establishment Clause suggests that a special exemption for religious books is forbidden. This tension between mandated and prohibited religious exemptions is well recognized. See, e. g., Walz v. Tax Comm’n of New York City, 397 U.S. 664, 668-669 (1970). Of course, identifying the problem does not resolve it.

JUSTICE BRENNAN’S opinion, in its Part IV, would resolve the tension between the Free Exercise and Establishment Clause values simply by subordinating the Free Exercise value, even, it seems to me, at the expense of longstanding precedents. See ante, at 21-25 (repudiating Follett and Murdock to the extent inconsistent with the newfound proposition that a State generally may tax the sale of a Bible by a church). JUSTICE SCALIA’S opinion, conversely, would subordinate the Establishment Clause value. This position, it seems to me, runs afoul of the previously settled notion that government may not favor religious belief over disbelief. See, e. g., Wallace v. Jaffree, 472 U.S. 38, 53 (1985); Welsh v. United States, 398 U.S. 333, 356 (1970) (Harlan, J., concurring in result); Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968); Abington School District v. Schempp, 374 U.S. 203, 218, 220 (1963); Torcaso v. Watkins, 367 U.S., at 495.

Perhaps it is a vain desire, but I would like to decide the present case without necessarily sacrificing either the Free Exercise Clause value or the Establishment Clause value. It is possible for a State to write a tax-exemption statute consistent with both values: for example, a state statute might exempt the sale not only of religious literature distributed by a religious organization but also of philosophical literature distributed by nonreligious organizations devoted to such matters of conscience as life and death, good and evil, being and nonbeing, right and wrong. Such a statute, moreover, should survive Press Clause scrutiny because its exemption would be narrowly tailored to meet the compelling interests that underlie both the Free Exercise and Establishment Clauses.

Frankly, Justice Blackmum’s suggestion has merit in that if the sales tax exemption had covered all publications by any organization qualified under Section 501 of the Internal Revenue Code it no doubt would have survived the legal challenge mounted in this case, as well as the “press clause” challenge of Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221. I would frankly look for that sort of resolution by governmental bodies who wish to do as Texas tried to do by tailoring its tax laws to benefit all charitable organizations as opposed to merely religious charitable organizations. The case of Walz v. Tax Comm’n of New York City, 397 U.S. 664 may well offer us the resolution of how to achieve a proper balance between the incompatible desires of atheists to be free from religion and the religious to openly pursue their religious beliefs, all the while avoiding governmental “establishment” of religion.

This is certainly not an easy state of existence, because freethinkers would obviously prefer if the government did “find in the Constitution a requirement that the government show a callous indifference to religious groups. [But, t]hat would be preferring those who believe in no religion over those who do believe.” (Zorach, supra) But just as the religious must learn to live without direct government subsidies for their sectarian activities, so too must we unbelievers learn that the government cannot be expected to be our partisan when the body politic is made up of primarily religious believers.

Some Conclusions

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Table of Contents

Further Reading:

Acknowledgements:

This compilation would have been a great deal more difficult were it not for the extensive resources of FindLaw.

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Footnotes:

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The text of this essay is Copyright © 2000-2001, by William A. Schultz. All Rights Reserved. Used by permission of the author.

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