RELIGIOUS LIBERTY

RELIGIOUS LIBERTY. The United States adopted a policy of religious liberty partly because influential people, including Thomas Jefferson and James Madison, advocated it, but partly because the sheer number of competing religious groups in eighteenth-century America made the possibility of religious uniformity remote. The nation's subsequent success in upholding the principle undermined the old European idea that an established church and a political state reinforced each other and that neither could thrive alone. In place of Europeans' attribution of divine right to their monarchs, Americans developed a civil religion, granting quasi-religious status to the Constitution, the flag, and the founders, but leaving plenty of room for citizens to practice their diverse particular religions.

Colonial Period

Colonial-era origins of American religious liberty are not hard to find. Separatist Puritans journeyed to the New World to escape religious persecution and in the expectation of finding a religious haven. Roger Williams, for whom the church was a purely spiritual phenomenon, detached religion from politics in early Rhode Island to prevent its political contamination. The Catholic founders of Maryland introduced a toleration law in 1649 for Christians of all types. William Penn's colony, Pennsylvania (1681), specified religious liberty not only for its original Quaker inhabitants but for all other settlers, and early became a shelter for Mennonites, Moravians, Baptists, and other dissenters from England and Germany.

These were no more than auguries, however, and it would be easy to overstate the degree of religious liberty in colonial America. The Church of England was established in Virginia and the Carolinas while the Congregationalist Church was established in most of New England. These establishments could be intolerant, as Massachusetts showed in executing four Quakers in 1659 and in hanging Salem's suspected witches in 1692–1693. Even after the Revolution, as the possibility of an Establishment disappeared, the widespread notion that America was a Protestant nation led to bursts of intense anti-Catholicism, in politics (the Know-Nothing Party) and in riots and the burning of Catholic churches and convents. Many churches, moreover, regarded religious liberty as a necessary evil rather than a positive good and looked forward to an era in which they would have spread their own particular brand of religious truth nationwide. Catholics themselves, despite recurrent persecution, sheltered under the American umbrella of religious liberty but aspired to a condition of Catholic unity, until Dignitatis Humanae, a document of the Second Vatican Council (1962– 1965) finally recognized religious liberty as a positive good.

No denomination did more to promote religious liberty than the Baptists, whose growth in the eighteenth century spread opposition to the idea of an establishment. Flourishing among the less-well-educated population and in the colonial backcountry, some Baptists challenged the legitimacy of the coastal Anglican elite and substituted a democratic model of divinely chosen preachers for the establishment's staid, seminary-educated clergymen.

The growth of Baptist influence in the backcountry coincided with the spread of Enlightenment ideals among colonial elites. Thomas Jefferson, like many leaders in the Revolutionary generation, feared the imposition of a more rigorous establishment after 1770 and the threatened arrival of Anglican bishops. Eager to see the republic proclaimed on rational grounds, he traced the natural law to a Deist "Creator" in his draft of the Declaration of Independence but avoided doctrinal or denominational language. In 1786 he wrote the "Act for Establishing Religious Freedom." James Madison, his friend and principal drafter of the Constitution, understood that it was going to be difficult to win ratification from all the states and that the best approach to religious issues was to leave them alone completely. This approach succeeded and was codified in the First Amendment (1791), which precluded Congress from passing laws pertaining to the free exercise or the establishment of religion. Several states retained established churches but support for them weakened in an atmosphere supportive of religious liberty. The last of them, in Massachusetts, was abolished in 1833.

The constitutional separation of church and state and the promotion of religious liberty, however, did not imply a lack of interest in, or respect for, religion. An overwhelming majority of the revolutionary generation thought of themselves as Christians, and they saw no contradiction in describing America as a Christian nation or in holding Christian services in Congress.

Nineteenth Century

Early-nineteenth-century developments strengthened this belief in a Christian America but also strengthened the principle of religious liberty. The democratic revivalism of the Second Great Awakening placed a new emphasis on individual religious choice. In earlier Calvinist theology, the anxious soul had had to prepare in hope for the infusion of God's grace. In the teaching of Francis Asbury, Charles Finney, and other revivalists, by contrast, the individual was free to choose to turn towards God and to decide to embrace salvation rather than waiting on God. This change in theological emphasis gave additional support to the principle of religious liberty; the unsaved individual needed a setting in which his or her choice for God was in fact free.

As we have seen, the arrival of a large Catholic population tested the limits of American Protestants' commitment to religious freedom; anti-Catholic writers like Samuel Morse (inventor of the electric telegraph and Morse code) feared that Catholics' allegiance to the pope, whom they depicted as a foreign absolute monarch, made them incapable of true loyalty to the republic. Catholic leaders like Cardinal James Gibbons of Baltimore and Archbishop John Ireland of St. Paul reacted by emphasizing Catholics' absolute loyalty to the church in matters of religion and absolute loyalty to the republic as citizens. The arrival of a large Jewish population in the mid-and late-nineteenth century, from Germany, Russia, Poland, and the Austro-Hungarian Empire, tested the principle further still.

Twentieth Century

Despite widespread Protestant suspicion of Catholics and Jews, however, and frequent polemics, permanent divisions along religious lines never disfigured the republic; neither did any religious group suffer legislatively enforced persecution. Jewish success and upward social mobility in America, along with widespread revulsion against the Nazi Holocaust, contributed to the rapid decline of American anti-Semitism after 1945. By European standards it had never been intense. The idea of America as a "Judeo-Christian" nation replaced, for many observers, the older claim that America was a Christian nation. The American confrontation with the officially atheist Soviet Union during the Cold War stimulated the spread of "Judeo-Christian" rhetoric. When Congress added the words "under God" to the pledge of allegiance in the 1950s, it was in recognition that America was on the side of religion and that America's religious liberty stood in sharp contrast to Soviet anti-religious persecution. The God in question, however, was not attached to any particular church.

The Immigration and Naturalization Reform Act of 1965 led, in the later decades of the twentieth century, to a new wave of immigration and a further diversification of the American religious landscape. Large numbers of Hindus and Buddhists entered America for the first time, and the Islamic population grew rapidly, partly through immigration and partly through the adherence of African Americans to the Nation of Islam. Here again, the principle of religious liberty operated to ensure that these groups were free to worship as they wished, that their religious organizations were insulated from the state, and that they, like all other religious groups, enjoyed tax exemption. Court cases, such as Sherbert v. Verner (1963), adjudicated nettlesome issues to accommodate students' and employees' religious needs and observation of holy days. Recurrent frictions, especially when neighbors' religions were dissimilar, were offset by a widespread belief in religious civility.

There have been occasions throughout American history when the right to religious liberty appeared to threaten other rights, or when activities undertaken in the name of religion violated social or legal convention. In such cases, the limits of the liberty were tested. In the nineteenth century, for example, the Oneida Community's practice of "complex marriage" and the Mormons' practice of polygamy brought down persecution on their heads. Neighbors of the Oneida Community were horrified by complex marriage, regarding it as no better than sexual promiscuity. Their pressure, along with declining fervor in the community's second generation, prompted John Humphrey Noyes, the founder, to emigrate and the community to dissolve. Early Mormon communities in Missouri and Illinois faced recurrent attacks with the connivance of the local authorities, which culminated in the murder of their leader Joseph Smith.

In the 1970s Americans wrestled with the issue of "brain washing" by cults. The counterculture of that decade gave rise to numerous religious organizations whose members lived in communes, often handing over their belongings to charismatic leaders. Were these cults—Jesus Freaks, Rajneeshis, Hare Krishnas, Moonies, and others—abusing the principle of religious liberty or were their unusual ways of life signs of its flexibility and continuing vitality? In the most notorious of these groups, the People's Temple, parents of young members claimed that their children had been brain washed into parting with their property and were, in effect, prisoners rather than devotees. People's Temple leader Jim Jones, denying these allegations, led his community out of the United States to Guyana (just as Brigham Young had led his people out of the United States and into what was then Mexican territory 130 years before). When Congressman Leo Ryan of California went to Guyana to investigate parents' claims in 1978, Jones told his security guards to assassinate Ryan at the Jonestown airstrip, then ordered the entire community (about 900 people) to commit suicide by drinking poisoned Kool-Aid. All but a handful, who escaped into the jungle, followed his suicide order. The ensuing scandal led some states to consider anticult legislation but found themselves unable to define the difference between denomination, sect, cult, and church. The principle of religious liberty prevailed against legislative intrusion, even though the principle was clearly liable to abuse in extreme cases.

BIBLIOGRAPHY

Butler, Jon. A wash in a Sea of Faith: Christianizing the American People. Cambridge, Mass.: Harvard University Press, 1990.

Eastland, Terry, ed. Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State. Grand Rapids, Mich.: Eerdman's, 1995.

Hanson, Charles P. Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England. Charlottesville: University Press of Virginia, 1998.

Hatch, Nathan O. The Democratization of American Christianity. New Haven, Conn.: Yale University Press, 1989.

Hunter, James Davison, and Os Guinness, eds. Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy. Washington D.C.: Brookings Institution, 1990.

Lee, Francis Graham, ed. All Imaginable Liberty: The Religious Liberty Clauses of the First Amendment. Lanham, Md.: University Press of America, 1995.

Patrick N.Allitt

See alsoDiscrimination: Religion ; andvol. 9:An Act Concerning Religion .

FREEDOM OF RELIGION

A Devil of a Controversy

In 1962 the U.S. Supreme Court handed down a decision which created an immense amount of controversy. The case was Engel v. Vitale, and the issue involved was the freedom of religion guaranteed by the First Amendment of the U.S. Constitution. There are few legal disputes which trigger the degree of emotional involvement among the populace as those involving the freedom of religion. Other than desegregation, there was no legal issue in the 1960s which aroused such widespread interest and criticism of the highest court in the land. In part this reaction was due to the importance of religion to many Americans. In part it was due to a dichotomy which is reflected in the Constitution itself. The freedom of religion set forth in that document really embodies two separate and often conflicting concepts. One portion of the right consists of the establishment clause which prohibits the establishment of religion by the government. The second portion of the Amendment deals with the related but distinct right of citizens to engage in the free exercise of their own religion. In this latter portion the issue is not one of government sponsorship, but rather of government interference in people's chosen form of worship or even nonworship. The First Amendment's religious provisions reflect the concern of our nation's founders who, as former British subjects, were very conscious of the problems which arose from a state-sponsored church. England had such a church, the Church of England, which received tax revenue paid by all citizens, even those of other faiths. The British government had at various times engaged in harassment of certain religious groups and had created religious tests for certain positions in government and in the military. In an attempt to avoid these problems in our new country, the establishment clause and the free exercise clause were added to our Constitution.

SKYJACKINGS

The 1960s saw the rise of a new criminal, the skyjacker. This new form of highjacking was the product of two developments: the birth of the commercial jet aircraft and the rise of Fidel Castro in Cuba. The jet provided long distance transport while Castro's Cuba offered a destination for various types of malcontents. Because Cuba's government was openly hostile to the United States, it offered a refuge where skyjackers could escape prosecution. Because it was a Communist destination, it had an allure for certain individuals dissatisfied with life in America. The first skyjacking to Cuba took place in May 1961, but many followed. During the 1960s nearly fifty successful attempts were made. Six more were foiled. Generally the police and airline officials tried to accommodate the skyjackers because of the great danger that an armed man poses to the airplane and passengers. A shot fired runs the risk of depressurizing the cabin or destroying essential controls on the air-craft, and in the limited space there is no place of safety to hide. Yet miraculously no injuries or fatalities were caused by these all-too-common occurrences.

Source:

Time (11 August 1961): 12.

A Source of Conflict

The problem is that a tension exists between these two rights. At some point governmental accommodation of religion may cross over into a violation of the establishment clause. The potential for conflict between these provisions has grown with the increasing involvement of the government into everyday affairs. In the eighteenth century there was no public-school system nor was there the myriad of other forms of government involvement taken for granted today. The scope for conflict has also increased with the extension of the rights embodied in the First Amendment to the states. Originally, the Bill of Rights, as the first ten amendments are known, only applied to the federal government. Over the years they have been gradually applied by the Supreme Court in a rather piecemeal process to the states as well. It was not until 1940 that the Court held that the states must comply with the free exercise clause, and in 1947 it held that they were also bound by the establishment clause.

School Prayer

In Engel v. Vitale the Supreme Court dealt with the question of prayer in public schools. A school in New Hyde Park, New York, began each day with a short nondenominational prayer in each class. It read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country," The prayer was recommended but not required by the state government and student participation was voluntary. Several parents of children brought suit, claiming that the prayer was contrary to their and their children's beliefs and violated their First Amendment rights. The defendants argued that because the procedure was purely voluntary and because it did not involve the expenditure of public funds that it did not constitute a violation of the separation of church and state. Instead they suggested that it merely enabled students to exercise freely their religious beliefs. While the Court had earlier held that the establishment clause required a "wall of separation" between church and state, this was the first case to deal directly with school prayer. The Court decided that prayer in public schools clearly violated this requirement of separation. However, in its opinion the Court cited no cases for its conclusion. Instead, it relied on a historical analysis of religious freedom in Britain and the United States stressing the dangers that had arisen to both the government and to religious movements when the boundary of separation was crossed. As a result, the Court found that any public involvement with religious matters through sponsoring prayers in and of itself violated the establishment clause, even if participation was wholly voluntary.

A Volatile Reaction

The opinion set off a storm of protest. Many critics of the Court felt that if the decision were taken to its logical conclusion, all reference to God in connection with any gonvernmental institution would be barred. They pointed out that such a step would apply to many basic aspects of American life such as the Declaration of Independence, the national anthem, the pledge of allegiance, the motto on coins, the words used to inaugurate the president, and even the words uttered before every session of the Supreme Court. While in fact the Court as a whole never took matters so far, the possibility was raised in the concurring opinion by Justice William O. Douglas. Justice Douglas suggested in his opinion that almost any reference to God or religion by a government official, no matter how brief or even merely ceremonial would violate the establishment clause. Following the release of the Court's opinion, newspapers were full of editorial opinions that ranged from articles which greeted the decision as a sober balancing of the conflicting rights at issue to others predicting that it would undermine the foundations of Western civilization. Con. Mendell Rivers (D-S.C.) claimed that the Court was "legislating—they never adjudicate—with one eye on the Kremlin and the other on the NAACP." Another congressman called the decision, "the most tragic ruling in the history of the United States." Over the next several years more than 150 amendments to the Constitution were offered by 111 different members of Congress in an attempt to reverse the Court. Yet despite the strong public reaction no amendment was ever adopted.

Fuel to the Fire

However, feelings of dissatisfaction did not disappear, and they were inflamed again the very next year when the Court reiterated its position in Ahbington School District v. Schemp. This case involved the reading of ten verses of the Bible, without comment, every morning at the beginning of the school day. This opinion placed less emphasis on history than before and instead pointed to the need for government neutrality with regard to religion. This neutrality would only permit government actions which had a nonreligious purpose and which neither advanced nor inhibited religion. Several years later this approach would be incorporated into the three-part Lemon test which established a standard for determining when there was a violation of the establishment clause.

The Other Side of the Coin

Also in 1963 the Court dealt directly with the meaning of the free exercise clause. In Sherbert v. Verner the Court held that the government could burden the right of religious freedom only if there was a compelling governmental interest and then only if government used the least intrusive means possible. This marked a major shift because previously the government was only required to show that it had a "rational basis" for doing so. The Court's ruling put in place a much higher degree of protection against government action which interfered with a person's religious practices.

Continuing Questions

The Supreme Court's approach to religion changed significantly during the 1960s; the court strengthened protections for both the establishment clause and free exercise clause. Yet, insofar as the two rights are sometimes at odds with one another, freedom of religion is not a matter which can be quietly laid aside by the courts. During the rest of the 1960s and up to the present day, the balancing of these two clauses has continued to provide disputes which affect the lives of many Americans every day.

Sources:

Henry J. Abraham, Freedom and the Court: Civil Rights and Liberties in the United States, second edition (New York: Oxford University Press, 1972);

Terry Eastland, ed., Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State (Washington, D. C: Ethics & Public Policy Center, 1993);

Kermit Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992).

Religious Liberty

Religion, the Supreme Court, and the Constitution

The diversity in American religious practice led to increased tensions when the First Amendment limitations on the powers of the government to regulate religious practice came into conflict with governmental obligations to protect society at large. During the 1980s the Supreme Court had insisted that religious activity could not be regulated by the state unless the state had a compelling interest and the proposed regulation was the least restrictive means of doing so. A Supreme Court ruling in 1990, however,

[This text has been suppressed due to author restrictions]

loosened those restrictions on local, state, and federal governments. The case, Employment Division, Department of Human Resources of Oregon v. Smith (1990) involved two members of the Native American Church who were fired from their jobs as addiction counselors after having consumed peyote in a traditional religious ceremony. When they applied for unemployment compensation, their application was denied because they had been fired for drug use. Claiming that their use of peyote was protected by the First Amendment, they filed suit. The Court found for the Employment Division, and in so doing altered the previous standard for adjudicating conflicts between governmental and religious interests. It ruled that a religious act was not protected if it violated a general law not aimed specifically at religious behavior. Only laws aimed at specific religious practices were unconstitutional. The Court made this clear in 1993 in Church of Lukumi Babalu Aye v. Hialeah, Florida when it found that a city ordinance banning animal sacrifice was aimed specifically at outlawing a practice of Santeria, a religion, since it did not forbid killing animals in meat-packing plants or hunting. Congress, with the support of most religious-rights organizations and many denominations, tried to restore the "compelling interest" and "least restrictive" standards that had been set aside in the Employment Division decision by passing the Religious Freedom Restoration Act (RFRA, 1993). The act said that the "government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person 1) is in furtherance of a compelling state interest, and 2) is the least restrictive means of furthering that compelling interest."

Counter Rulings

The RFRA proved to be short-lived. In 1997 the Supreme Court heard another case in which the legitimate interests of government competed with religious practice. In this case, a Catholic church in Boerne, Texas, wanted to build a new sanctuary for its growing congregation. Because the old building and property were in a designated historic district, the congregation was denied a building permit. When the Archbishop of San Antonio, Patrick F. Flores, sued the city on behalf of the church, claiming that its actions were protected by the RFRA, the Supreme Court used the occasion to strike down the act as an unwarranted intrusion by Congress on state and local governments. In 1998 and 1999, a new bill, the Religious Liberty Protection Act, was introduced in Congress but had not passed by the end of the decade. In another related case, Lee v. Weisman (1992), the Court ruled that prayer at public school graduations violated the "no establishment" clause, as did an attempt by New York to carve out a special school district strictly for a community of Orthodox Jews, Board of Education of Kiryas Joel Village School District v. Louis Grumet (1994). On the other hand, in Agostini v. Felton (1997) the Court overturned a 1985 decision (Aguilar v. Felton) and permitted public school districts to provide remedial instruction to disadvantaged students in religious schools. Given the complexity of negotiating the complex of laws, on 14 August 1997, President Bill Clinton issued Guidelines on Religious Exercise and Religious Expression in the Federal Workplace.

International Religious Liberty

Even as American law-makers and judges struggled to balance the right of free exercise of religion with the constitutional prohibition against governmental support or interference, Congress enacted legislation directing the president to take action whenever evidence is presented of religious oppression anywhere in the world. The International Religious Liberty Protection Act, which President Clinton signed into law on 27 October 1998, committed the United States to "take diplomatic and other appropriate action with respect to any country that engages in or tolerates violations of religious freedom." Although the president was granted substantial latitude in the application of the law, it provided the State Department, as well as people around the world whose lives and liberty were threatened by virtue of their religion, a way of insisting that the oppression of religious minorities worldwide would, at the least, be reported to Congress. Although the law made no distinctions among religions or oppressing governments, critics complained that much of the onus of persecution fell onto Islamic nations and most of the beneficiaries were likely to be Christian minorities. Robert A. Seiple—whom Clinton named as the first Ambassador-at-Large for Religious Freedom and chair of a nine-member commission assigned by Congress with the responsibility of reporting on religious persecution—argued that "The bill was written to promote religious freedom everywhere in the world. If some people are nervous about that, perhaps they should be." On 9 September 1999 Seiple released the first report mandated by the act; although 194 countries were included, Afghanistan, Iran, Iraq, China, Saudi Arabia, and Sudan were reported to be among the worst offenders against religious freedom. It also pointed out that the protection of religious freedom included the right not to believe and was based not on "the American Way" but the Universal Declaration of Human Rights that had been adopted by virtually all nations. Article 18 states that everyone "has the right to freedom, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others, and in public or in private, to manifest his religion or belief in teaching, practice, worship or observance." The report did not call for economic sanctions against violators and pointed out that it was, in many cases, impossible to separate persecution based on religious antagonisms from ethnic and political persecution.

Sources:

Robert F. Drinan, "Survey Documents Religious Freedom Abuses," National Catholic Reporter, 35 (8 October 1999): 20.

"Protecting Persecuted Christians," Christian Century, 115 (2 December 1998): 1136.

Freedom of Religion. See Bill of Rights; Church and State, Separation of; Civil Liberties.

freedom of religion see Constitution of the United States .

FREEDOM OF RELIGION

FREEDOM OF RELIGION. SeeFirst Amendment .