Religious Freedom
| Author | Jeffrey Wilson |
| Pages | 253-258 |
Page 253
The First Amendment to the U. S. Constitution provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The U. S. Supreme Court has interpreted this provision as guaranteeing two separate rights: (1) the right to live in a society where the government does not sponsor an official religion that dictates what God citizens must worship or what church they must attend; and (2) the right to exercise one's own religious faith in accordance with his or her conscience free from governmental intrusion. The first right is protected by the Establishment Clause of the First Amendment, while the second right is protected by the Free Exercise Clause of the First Amendment. Both clauses have their origins in American colonial history, and that history sheds light on the subsequent development of the First Amendment by state and federal courts.
Prior to the American Revolution, the English parliament designated the Anglican Church as the official church of the England and the American colonies. The church was supported by taxation, and English citizens were required to attend services. No marriage or baptism was sanctioned outside the church. Religious minorities who failed to abide by the strictures of the church were forced to endure civil and criminal penalties, including banishment and death. Some American colonies were also ruled by theocrats, such as the Puritans in Massachusetts.
The English and colonial experiences influenced the Founding Fathers, including Thomas Jefferson and James Madison. Jefferson supported a high "wall of separation" between church and state and opposed religious interference with the affairs of government. Madison, conversely, opposed governmental interference with matters of religion. For Madison, the establishment of a national church differed from the Spanish Inquisition only in degree, and he vociferously attacked any legislation that would have led in this direction. For example, Madison fought against a Virginia bill that would have levied taxes to subsidize Christianity.
The Founding Fathers' concerns about the relationship between church and state found expression in the First Amendment. Despite the unequivocal nature of its language, the Supreme Court has never interpreted the First Amendment as an absolute prohibition against all laws concerning religious institutions, religious symbols, or the exercise of religious faith. Instead, the Court has turned for guidance to the thoughts and intentions of the Founding
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Fathers when interpreting the First Amendment, in particular the thoughts and intentions of its primary architect, James Madison.
But Madison's views have not produced a uniform understanding of religious freedom among the Supreme Court's justices. Some justices, for example, have cited Madison's opposition to the Virginia bill subsidizing Christianity as evidence that he opposed only discriminatory governmental assistance to particular religious denominations but favored non-preferential aid to cultivate a diversity in faiths. Thus, the Framers of the First Amendment left posterity with three considerations regarding religious establishments: (1) a wall of separation that protects government from religion and religion from government; (2) a separation of church and state that permits non-discriminatory governmental assistance to religious groups; and (3) governmental assistance that preserves and promotes a diversity of religious beliefs.
The Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lemon the Court held that state and federal governments may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, does not have the primary effect of advancing or inhibiting religion, and does not otherwise foster excessive entanglement between church and state. Under this test, the Supreme Court held that the First Amendment prohibits schools from beginning each day with a 22-word, non-denominational prayer. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Such a prayer would be tantamount to the government sanctioning religion at the expense of agnosticism or atheism, the Court said, something not permitted by the Establishment Clause.
Similarly, the Supreme Court struck down a clergy-led prayer at a public school graduation ceremony as violative of the First Amendment. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). By contrast, lower federal courts are split over the issue of whether a student-led, non-denominational prayer at a graduation ceremony violates the Establishment Clause, with some cases finding the prayers unconstitutional because they are initiated on school grounds at a school-sponsored activities and other cases finding no constitutional violation because the prayers are initiated by students and not public employees. However, the Supreme Court has ruled that the First Amendment does permit state legislatures to open their sessions with a short prayer each day. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The Supreme Court concluded that history and tradition have secularized this otherwise religious act.
The Court has produced seemingly inconsistent results in other areas of First Amendment law as well. In one case the Court permitted a municipality to include a nativity scene in its annual Christmas display, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), while in another case it prohibited a county courthouse from placing a cross on its staircase during the holiday season. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). In Allegheny the Court said...
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