Freedom of Religion or Freedom from Religion

Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

Take care in relying on Barton. Zealotry more than fact shapes his “work,” which has been so thoroughly, repeatedly, and authoritatively debunked by so many who have demonstrated it to be riddled with slipshod research, shoddy analysis, and downright dishonestly that I can but wonder how anyone can call him an “authority” on this subject without turning red from embarrassment. Perhaps the handiest debunking is Chris Rodda’s book, Liars for Jesus: The Religious Right’s Alternate Version of American History (2006) (available free on line http://www.liarsforjesus.com/), where she conveniently collects and directly refutes his many mistakes and lies, all with documentation and references so complete one can readily assess the facts for one’s self without the need to take either Barton’s or Rodda’s word for it. The irony is that, by knowingly, repeatedly resorting to lies, this would-be champion of a religious right version of history reveals his fears that the real facts fall short of making his case. His own lying is perhaps the best evidence that his overall thesis is wrong.

As a lawyer speaking of the Constitution’s principles concerning government and religion, I focus on the Constitution rather than the Bible. I have little to say about the latter.

I am familiar with the original sources commonly cited in discussions of separation of church and state, as well as the pertinent commentary of scholars and advocates–enough so to recognize Barton’s slick huckstering for what it is. Really, the guy knows much about this subject, but his zealotry has gotten the best of him. He has been caught so often so plainly and intentionally twisting real facts and fabricating new ones that he simply has no credibility. He waves around copies of documents and boasts about relying on original sources (as if he’s the only one) to impress those who don’t know better, and then spins a yarn.

Rodda is an activist as well, though she can hardly be entirely discounted as an atheist working for an organization seeking to remove Christianity from the military. Apart from the fact that atheists can be as objective (or as biased) as Christians on these matters, and apart from the unfair characterization of the Military Religious Freedom Foundation, Rodda’s extensively researched criticisms of Barton’s claims withstand scrutiny. It is the work, and not the one doing it, that matters in the end. As I said, she provides all the original documents (including the one’s omitted or mischaracterized or misquoted by Barton), so one can see for oneself where the truth lies without taking her word for it. Sure, you have to get past misgivings about her religious beliefs and her blunt style to get to the facts she reveals, but learning the truth is well worth it. The irony is that she has in one sense honored Barton by studying his work more intensively, I suspect, than anyone else on the planet. I mention her, though, not because she is the most scholarly commentator or the only one who has exposed Barton (hardly, there are many), but rather because her book is handy in that its whole focus is to collect and directly discuss Barton’s false claims.

The proceedings reported in the Annals of Congress point in a different direction, I think, than you suggest. Madison initially doubted the need for any amendment on the subject because he considered the matter beyond the government’s power anyway; since others insisted on it, though, he was persuaded to introduce a proposed amendment, the one you quoted. In doing so, he proposed what he thought others wanted. During the discussion, some expressed a desire to focus the amendment on establishment of a national religion by law. Madison was generally comfortable with much of what others proposed, including that. Discussion progressed beyond the original proposal. With respect to a subsequent proposal stating “no religion shall be established by law, nor shall the equal rights of conscience be infringed,” he proposed adding the term “national,” thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings not only about the wording but also the scope of the proposal. Mr. Livermore suggested that it be altered to state “Congress shall make no laws touching religion, or infringing the rights of conscience.” Madison withdrew his motion, and the House then considered and passed Livermore’s motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment. If anything, Congress’s explicit consideration and rejection of language focusing the amendment on establishment of a national religion suggests that the ultimately adopted version is not so focused. To the extent there may be doubt on this score, Madison largely removed it by his two vetoes I noted earlier and by explaining in his Detached Memoranda his understanding of the First Amendment as ultimately adopted.

While some among those who drafted and ratified the First Amendment undoubtedly were motivated by a desire to protect the rights and powers of states from the federal government as you suggest, others just as undoubtedly sought to protect the rights of individuals from the federal government. Whatever their various motivations, they agreed on an Amendment that limits the power of the federal government with respect to religion so as to serve all of these ends. That understanding of the founders’ intent comports as well with the political “disestablishment” movement then sweeping the country. The First Amendment was largely an accomplishment, at the federal level, of that movement, which also succeeded in disestablishing all state religions by the 1830s. It is worth noting, as well, that this disestablishment movement partially coincided with another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.

I do not deny our Christian heritage as you suppose. While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such as you note regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.

I agree with what I take is your overarching thesis that the founders would not establish a government that is inherently at odds with their religious convictions, which were largely Christian in nature. Moreover, given the republican nature of our government, I think it is only natural and expected that the laws enacted by our government–in both the founders’ time and today–largely reflect Christianity’s dominant influence in our society.

That said, there is no reason to suppose that Christianity or theism is an inherent aspect of our constitutional government. Indeed, any such claim is antithetical to the constitutional principle against government establishment of religion. By founding a secular government and assuring it would remain separate, in some measure at least, from religion, the founders basically established government neutrality in matters of religion, allowing individuals to freely choose and exercise their religions and thus allowing Christianity (and other religions) to flourish or founder as they will. As noted above, it is to be expected that the values and views of the people, shaped in part by their religions, will be reflected in the laws adopted by their government. There is nothing in the Constitution that requires or calls for this; it is simply a natural outgrowth of the people’s expression of political will in a republican government. To the extent that the people’s values and views change over time, it is to be expected that those changes will come to be reflected in the laws adopted by their government. There is nothing in the Constitution to prevent this; indeed, just the opposite–the Constitution establishes a government designed to be responsive to the political will of the people. It is conceivable, therefore, that if Christianity’s influence in our society wanes relative to other influences, that may lead to changes in our laws. Nothing in the Constitution would prevent that–and moreover the establishment clause would preclude Christians from using the government to somehow “lock in” (aka establish) Christianity in an effort to stave off such an eventuality.

I look forward to checking out the books from the 1800s you mention. I became quite familiar with Story’s Commentaries while researching for an article concerning the First Amendment while in law school. I am not familiar, though, with the others you mention.

tsc,

I think you misapprehend my point. I do not suppose that there should be no religious influence in government. As I observed above, it is to be expected in a republic that the people’s views, shaped in part by their religions, will influence the government’s actions.

It is important to distinguish between the “public square” and “government” and between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not, as is sometimes complained, purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere–which covers these subjects. I commend it to you. http://tiny.cc/6nnnx

All that said, I respect your desire to return to what you intended to be the focus of your post and so, with that, I’ll leave you to it.