The Constitution - What Does Religion Have to Do With It?
There's certainly been a lot of discussion about the role of God and religion in our political life, that somehow the United States of America is a Christian country. The implication is that non-Christians are merely tolerated, and whatever rights non-Christians have can be revoked at the whim of the majority. (Full disclosure - I'm Jewish. This kind of talk makes me extremely uncomfortable.) Has Pat Robertson actually read the Constitution or the works of the Founding Fathers?
This got me to wonder: what does the Constitution say about God and religion? The answer: not much. There is no reference to God or any higher power in the Constitution, or any of the Amendments, for that matter. Interestingly, there is plenty of reference to God, nature's God, and Divine Providence, in the Declaration of Independence. But of course, the signers of the Declaration knew that by signing the document they placed themselves in mortal danger. I guess there are no atheists in a foxhole. As far as reference to religion, in the baseline Constitution (without the Amendments), there is exactly one reference. It's a simple, yet powerful phrase, in Article VI, Paragraph 3:
...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
That includes any public officer, from the President, members of Congress, the Courts, down to state and local officials. Everyone. No exceptions. Forever and ever. OK, so 42 out of 43 of our Presidents were Protestants of various denominations. Richard Nixon was a Quaker, but that didn't stop him from prosecuting the Vietnam War. The lone exception, President Kennedy, was a Catholic who during the 1960 campaign had to appear before a panel of Protestant divines to assert that he was not a tool of the Vatican. That's just the luck of the draw, somewhat like tossing a penny 43 times and having it come up heads 42 times. If the voters prefer white, Anglo Saxon, Protestant, males, so be it.
The subject of religion raised its head during the discussion over the Bill of Rights. A substantial number of people felt that the Constitution should spell out additional guarantees of freedom. What we know as "freedom of religion" was right at the top, and of course it was incorporated into the First Amendment.The reference to religion is short - 16 words - in 2 clauses:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
According to the Establishment clause (...respecting an establishment of religion...) Congress cannot create a law that creates a state religion. One could argue that because of culture and history, that most of us celebrate Christmas, that we sing "God Bless America", or whatever, that America is a Christian country. It's just that Congress can't pass a law that states that America is a Christian country and then perhaps limit non-Christians from full participation in our political life.
Additionally, according to the Free Exercise clause (...or prohibiting the free exercise thereof) Congress cannot prevent someone from expressing their religious beliefs in a manner they see fit. So Congress cannot create a law that prevents Moslems from attending a mosque or Jews from a synagogue.
The Founding Fathers tended to view religion as a private matter. George Washington forcefully and eloquently expressed the attitude of the Federal government in a letter to the warden of Truro Synagogue, the oldest synagogue in the United States:
The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of once class of people, that another enjoyed the exercise of their inherent national gifts.
For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.
Washington saw religion as a private matter. The word "toleration", which implied an official religion where the majority tolerated minority religions, should be relpaced by "freedom", where all religions are treated equally and we can each sit under our own vine and fig tree without fear.
Madison, in Federalist Paper 10, wrote:
A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.
In other words, each religion is, in essence, a special interest group. Religious diversity should be encouraged - the more of it, the stronger our country.
Jefferson felt the same way. In an 1802 letter to the Danbury Baptist Association, he wrote:
Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.
That letter was the first reference to "separation of church and state".
There were very few cases related to religion that made it to the Supreme Court until as late as the 1940s. The first major case that tested the Establishment Clause was Everson v. Board of Education (1947), in which the Supreme Court held that a New Jersey law that allowed reimbursement to parents for bus transportation to parochial school was constitutional. One could mark the start of the "culture wars" about religion in our society from this date. It's all based on the conflict between the Establishment Clause and the Free Exercise Clause of the First Amendment. I'll discuss subsequent case law in a future episode.