Religion and Secularism in Constitutional Interpretation and Democratic Debate
RELIGION AND SECULARISM IN CONSTITUTIONAL INTERPRETATION AND DEMOCRATIC DEBATE
Although the first amendment forbids any law "respecting an establishment of religion, or prohibiting the free exercise thereof," the term "religion" is not defined. In its first efforts to define the term, the Supreme Court adopted a theistic approach: In davis v. beason (1890), the Court described religion as "[having] reference to one's views of his relations to his Creator, and to the obligations they impose or reverence for his being and character, and of obedience to his will." Similarly, in 1931, Chief Justice charles evans hughes wrote that "the essence of religion is belief in a relation to God involving duties superior to those arising from any human relation."
Theistic definitions of religion most likely reflect the majority view of those who drafted and adopted the Constitution. The nineteenth and twentieth centuries, however, brought increasing numbers of nontheistic and pantheistic religious adherents to the United States. Responding to both the rise of religious pluralism and modern developments in systematic theology, in the 1960s and 1970s the Court experimented with broader definitions of religious belief. In united states v. seeger (1965), the Court considered the conscientious-objector provisions of the Military Training and Service Act. After canvassing the works of modern theologians including Paul Tillich, the Court interpreted the act's accommodation for "beliefs in relation to a Supreme Being" to include objections based on what Tillich called one's "ultimate concern." Under this definition, any strongly held belief would qualify as religious. Expanding on this theme, in Welsh v. United States (1970), the Court held that "religious beliefs" protected by the act included any belief analogous or "parallel" to those of a religious person. Applying this definition, the Welsh Court rejected the defendant's own assertion that his beliefs were not religious. According to the Court, "very few registrants are fully aware of the broad scope of the word 'religious' as used in [the Act]."
Although the Court was interpreting a statute in the selective service cases, its broad definition of religion was motivated by a concern that any narrower approach would violate the establishment clause. Such a broad definition of religious belief, however, creates a host of conundrums: If any belief is at least potentially religious, how is the term "religion" meaningful as a class of beliefs and activities receiving unique protection under the free exercise clause? Moreover, expansive definitions of religion presumably apply equally to the free exercise and establishment clauses. Thus, if it is true, as some Justices have suggested, that ethical systems like "secular humanism" are religions protected under the Constitution, then public school administrators arguably have "established religion" any time they attempt to inculcate secular values in their students.
In the decades following the selective service cases, in cases such as wisconsin v. yoder (1972) and thomas v. indiana review board (1981), the Court occasionally suggested in dicta that the Constitution protects only religious belief, not secular philosophy. Nevertheless, the Court has never specifically defined the term "religion" under the Constitution, and has expressly stated that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." In practice, it is extremely rare for a court to dispose a religious liberty claim on the ground that the belief at issue is "secular" and not "religious." Most free exercise opinions focus not on the religious nature of the individual's beliefs, but on whether the government was justified in its refusal to accommodate those beliefs.
Despite these difficulties in defining what is religious and what is secular, two recurrent themes of constitutional commentary raise the issue of religion and secularism in democratic debate. First, to what extent does the Constitution protect or permit religious arguments in the public square? Second, to what extent is it morally appropriate to use or rely on religious arguments in favor of particular laws?
Under current interpretations of the speech and establishment clauses, not only is it permissible for a private individual to deploy either religious or secular arguments in democratic debate, cantwell v. connecticut (1940) makes clear that it is unconstitutional to prohibit such expression. Similarly, private individuals may rely on religious arguments in deciding whether or not to vote in favor of a particular public policy. Indeed, such reliance probably could not be prevented.
A more difficult question is posed when legislators use or rely on religious rationales in their decisions to vote on proposed laws. Under the lemon test for establishment clause violations, all laws must have a secular purpose. This rule does not invalidate laws that coincide with religious principles; that would require invalidating much of the civil and criminal code, including laws against murder. The Court requires only that laws have some secular purpose, even if the law simultaneously advances some religious principle or belief. In theory, this leaves both legislators and private citizens free to use or rely on religious rationales, as long as some secular rationale suffices to justify the law.
In practice, however, the Court has not always deferred to the secular rationales offered in support of laws that were vigorously promoted by religious groups. For example, in Edwards v. Aguillard (1987), the Court invalidated a "balanced treatment" statute that required the teaching of both evolution and creation science, or neither, in the public schools for lack of a secular purpose. wallace v. jaffree (1985) invalidated a state "moment of silence in public schools" law in part on the basis of legislative statements supporting prayer in public schools. To the extent that religious adherents or organizations publicly advance religious grounds for the adoption of particular laws, they increase the risk that courts will discount secular justifications for regulation and hold that the law was solely motivated by a religious rationale.
During the 1970s and 1980s, there was an additional link between private religious advocacy and the constitutionality of particular government programs. At that time, the Court interpreted the "entanglement" prong of the three-pronged Lemon test as discouraging religious-based political discourse or, as some Justices put it, "political division along religious lines." These Justices believed that religiously motivated political discourse was such a danger to democratic debate that it justified—and most often required—exclusion of religious organizations from general government funding programs. No outcome in any case turned expressly on the "political entanglement" analysis, and, since the 1980s, the Court has downplayed the idea that religious political discourse is disfavored under the Constitution.
Even if religious arguments in the public square are constitutionally protected, there remains the question of whether such arguments are morally justifiable. Political theorists like John Rawls and Bruce Ackerman argue that participants in a liberal democracy should argue in terms that are accessible to all citizens, regardless of religious belief. Because religious-based arguments are inaccessible to nonbelievers, these arguments either should be voluntarily removed from public political debate or only presented in tandem with accessible secular arguments.
If people believe that both religious and secular arguments support their position, arguably they have a moral obligation to present the secular as well as the religious argument in public debate. Morally (and strategically) it seems better to use reasons that unite rather than divide. The more difficult issue, however, involves the obligations of religious believers who are not convinced that any secular rationale supports their preferred policy. In this situation, the believers face a difficult choice: They must present solely the religious argument (which is inaccessible to nonbelievers), advance secular rationales that they themselves find unconvincing, or say nothing at all. Under theories advanced by Rawls and Ackerman, the first option is off-limits; therefore, the religious believer must either dissemble or remain silent.
Such constraints are unacceptable to scholars like Michael Perry and David Smolin, both of whom argue that religious arguments are valuable additions to public debate. Perry argues that, since it is inevitable that some people will rely on religious rationales, it is better to welcome religious arguments to the public square where they can be debated and tested. Smolin rejects the idea that religious arguments are necessarily inaccessible to nonbelievers: Major religions like Judaism, Islam, and Christianity are premised on the belief in a very public and accessible revelation of God. Moreover, instead of being inherently divisive, religious arguments often may constitute a kind of common ground between individuals with otherwise polarized cultural or political perspectives.
Voluntary restraint theories, whatever their form, are efforts to combat what many view as the tendency of religious belief to polarize public debate. Ironically, however, some of the most important advances in civil rights have been accompanied by impassioned—and polarizing—religious rhetoric. The most obvious examples are the historic speeches of the religious abolitionists and activists in the civil rights movement of the 1960s. In the end, whatever might be gained by secularizing public debate might come at the cost of religiously inspired moral urgency.
Kurt T. Lash
Lash, Kurt T. 1997 Civilizing Religion. George Washington Law Review 65:1100–1119.
Smolin, David M. 1996 Cracks in the Mirrored Prison: An Evangelical Critique of Secularist Academic and Judicial Myths Regarding the Relationship of Religion and American Politics. Loyola of Los Angeles Law Review 29:1487–1512.
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