Church and State

Church and State

THE ESTABLISHMENT CLAUSE

THE FREE EXERCISE CLAUSE

TENSION BETWEEN THE RELIGION CLAUSES

CHURCH-STATE RELATIONS IN COMPARATIVE PERSPECTIVE

BIBLIOGRAPHY

Relations between the sacred and the secular have long been important issues in Western democracies. In particular, legal questions surrounding the relationship between church and state in the United States have frequently animated American politics since World War II (1939– 1945). The 1940 Supreme Court decision in Cantwell v. Connecticut had the effect of incorporating the religion clauses of the First Amendment of the U.S. Constitution, and applied these provisions to the acts of state governments. The incorporation of the First Amendment clauses dealing with religion has resulted in a large outpouring of case law during the final third of the twentieth century, as well as the first decade of the twenty-first.

THE ESTABLISHMENT CLAUSE

The First Amendment of the U.S. Constitution begins with the phrase, “Congress shall make no law respecting an establishment of religion.” This phrase, usually termed the establishment clause, has, in recent decades, defined the limits under which government (and, by extension, popular majorities) can provide symbolic support for religious values or material support for religious organizations.

There are two general theories by which the establishment clause can be interpreted. According to advocates of accommodationism, the establishment clause simply prohibits government from designating an official church, or providing preferential treatment to one church or religious tradition. Neutral, nonpreferential assistance to religion is considered permissible by accommodationists. By contrast, adherents of separationism believe that any assistance for religion by government is unconstitutional and that there must exist a “high wall” of separation between church and state.

The operative legal precedent with respect to establishment-clause jurisprudence is the 1971 case of Lemon v. Kurtzman. In Lemon, the court held that government assistance to religion was not constitutional unless such assistance: (1) had a primarily secular purpose; (2) had a primarily secular effect; and (3) did not result in “excessive entanglement” between church and state. The Lemon test is considered to represent a generally separationist precedent, since it limits general assistance to religion, as well as assistance to particular religions.

In general, the Supreme Court has employed the Lemon test in cases posing establishment clause issues, but the Court has begun to relax its application of the criteria under which government assistance to religion can be rejected as unconstitutional. To illustrate, in Agostini v. Felton (1997), the Court ruled that state governments could provide (and fund) remedial instructors in parochial schools. Similarly, by a five-to-four margin, the Court held in Zelman v. Simmons-Harris (2002) that a program of government-financed tuition vouchers for students at private schools did not violate the “effects” prong of Lemon, despite the fact that a large majority of private schools in Ohio were religiously affiliated. Thus, the U.S. Supreme Court is gradually moving in a more accommodationist direction from a generally separationist precedent.

Of course, many governmental accommodations to religion are politically popular, and are therefore frequently enacted by elected officials. Most conspicuously, the policy of government-supported “faith-based initiatives” was proposed by President Bill Clinton and enacted with the support of President George W. Bush. The constitutionality of such initiatives had not been subjected to court tests as of 2006, and recipients of such grants had to conform to certain standards to ensure that government funds were only used for “secular” purposes. This trend is clearly moving in the direction of a looser interpretation of the establishment clause, although the actual amount of government assistance to religious bodies is uncertain.

THE FREE EXERCISE CLAUSE

The second First Amendment clause that deals with religion—“or prohibiting the free exercise thereof”—is generally termed the free exercise clause. The free exercise clause has usually defined the limits of governmental power to control religiously motivated activities.

There are two general theories of the free exercise clause. Libertarianism entails a belief that religious obligations often supersede the requirements of citizenship and that government should be very deferential to religious beliefs. Proponents of communalism believe that religion is accorded no special protection under the free exercise clause and that the clause simply prohibits government from singling out religious practices for specific regulation. However, communalists believe that generally neutral laws that happen to restrict religious liberty pose no constitutional difficulty.

In the 1990s the Supreme Court’s free exercise jurisprudence took a drastic shift in the direction of communalism. Prior to 1990, the Court’s reading of the free exercise clause could generally be characterized as libertarian. Based on precedents such as Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), the Court held that government could only interfere with religious free exercise if the restriction on religious freedom served an “essential” government purpose, and if the means of achieving that purpose were the least restrictive available. The Sherbert-Yoder test was thus quite deferential to the free exercise claims of religious minorities.

In 1990 the Court held in Employment Division v. Smith that otherwise valid laws that had the effect of restricting religious freedom were constitutionally permissible, unless religious practice was singled out for specific regulation, or unless the legislature had made an explicit exception. In City of Boerne v. Flores (1997), the Supreme Court reaffirmed this ruling and struck down a congressional statute intended to restore the Sherbert-Yoder standard. Thus, the Smith ruling signaled an important change in the manner in which the Court interprets the free exercise clause.

Some critics have charged that the Smith ruling was intended to make it easier for government to regulate religions that lie outside of the theological or cultural mainstream. Indeed, one effect of Smith has been to permit government at all levels to be less deferential to unconventional religious traditions. However, the Court’s reaffirmation of the Smith ruling in Boerne (which limited the free exercise prerogatives of the Roman Catholic Church in a predominantly Catholic area) suggests that the Court is willing to limit the scope of the free exercise clause in a relatively uniform manner. Of course, elected officials are more likely to regulate the activities of unpopular religious groups, and Americans have been shown to be less tolerant of practitioners of faith traditions outside of the Judeo-Christian tradition.

TENSION BETWEEN THE RELIGION CLAUSES

In general, courts in the United States have tended to treat establishment clause issues separately from issues involving the free exercise clause. However, many actual controversies have seemed to involve both considerations, and supporters of different policies have typically invoked both clauses in support of their positions. For example, the U.S. Supreme Court has, in a long string of decisions, restricted state-sponsored religious expression in public schools on establishment clause grounds. These decisions have proscribed organized classroom prayer, a moment of silence for “prayer or meditation,” ceremonial prayers at high school sporting events or graduations, and restrictions on the teaching of evolution in biology classes. In such cases, opponents of these decisions have criticized these court rulings on free exercise grounds.

Parties to these decisions, as well as members of Congress and state legislators, have argued that the right of religious free exercise entails the right to express one’s religious beliefs publicly, and government policies that limit such expression violate the free exercise clause. Such arguments typically emphasize the “voluntary” nature of school prayer or an “even-handed approach” to the creation-evolution controversy, and suggest that the courts are restricting constitutionally protected religious expression with an overly broad interpretation of the establishment clause.

Arguably, it matters a great deal whether a particular controversy is characterized as an issue of religious establishment or a question of religious free exercise. While many legal scholars have attempted to provide a general solution to the tension between the Constitution’s two religion clauses, such arguments typically involve the assertion that one of the religion clauses has priority over the other. However, neither the text of the Constitution nor recent Supreme Court rulings provide meaningful guidance as to how apparent conflicts between the establishment and free exercise clauses should be resolved.

CHURCH-STATE RELATIONS IN COMPARATIVE PERSPECTIVE

Although the tension between the religion clauses of the First Amendment of the U.S. Constitution is a frequent source of confusion (as well as litigation), comparison with other Western democracies suggests that the combination of establishment and free exercise concerns may be fortuitous for the practice of American politics. Religion is a visible but hardly dominant force in political discourse in the United States, which provides multiple sources of transcendent values for political life.

By contrast, several other democracies provide government support for religious bodies (such as subsidies for schools or clergy salaries), which would be considered a violation of the establishment clause in the United States. Indeed, several European nations have legally established churches. Some analysts have suggested that this sort of governmental support results in a decline in religious membership and practice, since government support reduces the need for churches to attract support from members or potential members.

In other nations, such as France and Turkey, a policy of laicite constitutes attempts by the government to reduce or eliminate the presence of religion in the public life of the nation. In such settings, some religious adherents (especially those who identify with minority faith traditions) appear to experience divided loyalties between the demands of citizenship and discipleship. Religious behaviors (including such matters as clothing or the display of religious symbols) are frequent sources of social and political conflict in such nations.

SEE ALSO Church, The; Religion; State, The; Theocracy; Tolerance, Political

BIBLIOGRAPHY

Black, Amy E., Douglas L. Koopman, and David Ryden. 2004. Of Little Faith: The Politics of George W. Bush’s Faith-Based Initiatives. Washington, DC: Georgetown University Press.

Davis, Derek H. 1996. Resolving Not to Resolve the Tension Between the Establishment and Free Exercise Clauses. Journal of Church and State 38: 245-259.

Jelen, Ted G. 2000. To Serve God and Mammon: Church-State Relations in American Politics. Boulder, CO: Westview.

Jelen, Ted G., and Clyde Wilcox. 1994. Public Attitudes Toward Church and State. Armonk, NY: Sharpe.

Levy, Leonard. 1994. The Establishment Clause: Religion and the First Amendment. 2nd ed. Chapel Hill: University of North Carolina Press.

Monsma, Stephen V. 1993. Positive Neutrality: Letting Religious Freedom Ring. Westport, CT: Praeger.

Monsma, Stephen V., and J. Christopher Soper. 1997. The Challenge of Pluralism: Church and State in Five Democracies. Lanham, MD: Rowman and Littlefield.

Stark, Rodney, and Roger Finke. 2000. Acts of Faith: Explaining the Human Side of Religion. Berkeley: University of California Press.

Wald, Kenneth D. 2003. Religion and Politics in the United States. 4th ed. Lanham, MD: Rowman and Littlefield.

Ted G. Jelen