Freedom of Religion

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Freedom of Religion

As their colonial experiment began in 1607, the English monarchy was striving for a modicum of uniformity in religious expression and practice. Instead, the nation was torn by theological conflict until the final decade of the century. In 1689, after almost two hundred years of bitter religious rivalry and persecution, the English Parliament passed the Act of Toleration, which retained the Church of England as the established religion and granted toleration to a wide range of Protestants.

In the seventeenth century, American colonial religious sects spread out along the coast like the refraction from a prism. In England there was one political system, over which warring factions fought to establish a version of Protestantism. In America each faction found room for its own form of establishment, colony by colony.

Each of the thirteen colonies reflected a portion of that spectrum without any politically effective community of dissent. Each colony established its own brand of Protestantism, wherein minorities were frequently persecuted. The Anglican Church in Virginia and Puritanism in Massachusetts reigned supreme until the middle of the eighteenth century. Rhode Island, under the leadership of Roger Williams, was a notable exception, with no establishment for several decades.

By 1775 English America sported thirteen distinct governing bodies, under control of Parliament, and each with a discrete religious establishment. Some were severely restrictive; others, more lenient. That picture changed for some states at the birth of the new nation, signaled by the adoption of various declarations of rights. Other states—Massachusetts and Connecticut, for example—continued a church establishment well into the nineteenth century. This was confirmed in a letter to President Jefferson in 1801 by several Baptist leaders in Danbury, Connecticut: "[T]herefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. . . ."

The 1789 Constitution was silent on religion save for prohibiting religious tests for holding public office. Adoption of the First Amendment religion clauses created no consensus on the issues of religious freedom and establishment at the state level. Leaders in Connecticut and Massachusetts saw those clauses as a protection against federal interference with state religious establishments. In contrast, Virginian James Madison championed a federal mandate securing religious freedom and nonestablishment in state law. That sharp ideological division explains why the Senate refused to extend the First Amendment's guarantees to state laws, rejecting Madison's sound insight that it was in the states and local communities where religious freedom was most at risk. Not until after the ratification and incorporation of the Fourteenth Amendment did Madison's view finally prevail.

Throughout the nineteenth century and the first half of the twentieth, even though most states had adopted strong declarations on the rights of conscience, a de facto Protestant establishment most frequently ignored or reinterpreted its own constitutions to allow for political control by Protestants. After 1850 that hegemony slowly eroded in the face of the immigration of Roman Catholics and, by the close of the century, the growing American Jewish population. Nevertheless, state practices, particularly respecting emerging public schools, were consistently tilted toward the Protestants in most jurisdictions. It was not until 1928, with the nomination by the Democrats of Al Smith to run for president, that the nation as a whole had to confront the full implications of that nineteenth-century de facto establishment. Smith's defeat, while frequently attributed to his Roman Catholic faith, was the result of numerous other factors as well. But it put the nation on notice that the religious issue would not go away.

In the early 1940s the U.S. Supreme Court focused on several state actions that, guided by the Fourteenth Amendment, it determined were in violation of the religion clauses. Those early decisions focused on "free exercise"; however, in 1948, in its McCollum decision, the Court declared unconstitutional the teaching of religion by sectarian denominations in the public schools. The nation awakened to the fact that long-established religious practices in a vast number of public schools were at risk. In that same postwar era a new wave of national religious fervor emerged, fueled by television evangelist Billy Graham and by Bishop Fulton J. Sheen. They found support in the public piety of presidents Truman and Eisenhower. In the fifties the McCollum decision was modified as the entire issue was overshadowed in the public mind by Brown v. Board of Education and the civil rights movement of that decade.

In 1960 the nation turned a corner with the election of Roman Catholic John F. Kennedy. The new president was more staunchly committed to a clearly defined church/state separation than his two predecessors had been. The year after Kennedy took office, the Supreme Court issued its 1962 decision Engel v. Vitale, forbidding public-school-sanctioned prayers. A year later, in Abington v. Schempp, the Court extended Engel to cover Bible reading in public schools. President Kennedy was the voice of reason when he spoke to the public following Engel: "We have in this case a very easy remedy, and that is to pray ourselves." But reason was hardly the order of the day in Congress. Following the 1962 Court decision an angry House of Representatives voted unanimously to replace some of the stars on the wall above the Speaker's desk with "In God We Trust." A Missouri Democratic congressman opined that one of the ". . . by-products of our act today is that we have given perhaps not too directly, but in not too subtle a way, our answer to the recent decision of the U.S. Supreme Court. . . ."

As Congress responded with proposals to amend the Constitution to overturn the Court decisions, the weight of the National Council of Churches, several Roman Catholic clerics, and the Conservative and Reform Jewish communities was on the side of the justices. The term "Religious Right" had not yet emerged. The "mainline" churches and synagogues were instrumental in blunting attacks on the Court. There were, to be sure, sharp critiques of the "Warren Court" on church/state issues by conservative religious leaders, but all efforts to derail, by constitutional amendments, the impact of the religion clauses consistently foundered throughout the rest of the sixties and the seventies. In 1971 the Court created three criteria by which to judge whether the establishment clause had been breached. The "Lemon test" asserted that any statute must have a secular legislative purpose, it must not advance or inhibit religion, and it must not foster excessive government entanglement with religion. In the following years there were several Court decisions that denied public funding for religious institutions.

But there was a storm brewing. The seventies were the decade when television became a player in a drama that altered the church/state debate. Religious fundamentalists had begun, in the late sixties, to use the medium for preaching and fund-raising. Jerry Falwell was one of the earliest television preachers. Adhering to a position espoused by his fundamentalist forebears, he eschewed political action altogether. Enter the Supreme Court once more.

In 1973 the Court handed down its decision in Roe v. Wade, overturning state antiabortion laws. It was predictable that the Roman Catholic leadership would find the justices to be in serious error. What was not anticipated was Falwell's response. He immediately found himself in a quandary. Should he become a politically active preacher in light of what he saw as an outrageous attack on ethics and values? The answer was unmistakably affirmative. More than anything else, that single decision by the Lynchburg Baptist preacher was to energize a large block of several million Americans, devoted to Christian fundamentalism, into becoming politically involved. Some six years later the Moral Majority began to take shape; it entered the national political fray in 1980.

With the election of Ronald Reagan that year a new political force moved onto the public stage just at a time when the mainline Protestants were seemingly suffering from an identity crisis. That force came to be called the "Religious Right," and it aided Reagan in his defeat of President Carter. From the beginning the Moral Majority, conceived by Paul Weyrich and Howard Phillips and headed by Falwell, urged amending the Constitution to allow public-school-sponsored prayer and demanded the overturning of the Roe v. Wade decision. Reagan's Supreme Court appointees included justices less impressed with the Jefferson/Madison model on church and state. Indeed, for the first time a "litmus test" for court appointees was created, focused on the two issues—prayer in schools and abortion.

Throughout the eighties powerful pressure from the leaders of the Religious Right was exerted on those two fronts, and in 1992 it seemed to be bearing fruit. Two Supreme Court cases appeared ideal as a means of keeping the promises by the Reagan-Bush administration. President Bush, to that end, instructed the Justice Department to contest the two cases: Planned Parenthood v. Casey (abortion) and Lee v. Weisman (school-sponsored graduation prayer). The Religious Right had reason to expect victory on two fronts. But in two 5–4 decisions in June 1992, the Court upheld Roe v. Wade and declared unconstitutional public-school-sponsored graduation prayers.

The surprising election of Bill Clinton in 1992 created a dilemma in the minds of many of the religiously motivated supporters of Reagan and Bush. In his first term President Clinton appointed two judicial moderates to the Court, Ruth Bader Ginsburg and Stephen Breyer. Further, Clinton lent the power of his office in opposing a constitutional prayer amendment offered by Representative Ernest Istook, who had the full support of House Speaker Newt Gingrich. In 1998 Istook's efforts resulted in a vote far short of the required two-thirds majority, and Madison's legacy seemed, for the moment, somewhat more secure.

The state of Religious Right political action in 1999 was less clear. In the spring, even as vouchers for religious schools was becoming a hot political and judicial topic, there was a strong signal that some leaders of the Religious Right, having almost nothing tangible to show for twenty years of intense political activity on behalf of their moral agenda, were thinking of returning to a pre-1980 approach in which political action would take second place to the moral and spiritual growth of communities of faith. Leaders such as Paul Weyrich, William Bennett, and Robert Bork were making sounds in that direction. The move was, it appeared, based on an evident failure to convince enough politicians that a political party platform should include a moral agenda predicated on a particular religious perspective. As the century closed, the founders' secular republic had weathered, once again, efforts to install a colonial model that would provide governmental preference for religious institutions.