Legal Feature


Religious Liberty Still a Beacon



January 13, 2006

By Kent Willis
From The Freelance Star

In America's great dance to the music of time, the winningest couple in the constitutional-rights category is surely the Free Exercise and Establishment clauses of the First Amendment. In the first few beats of the Bill of Rights, this powerful and elegant twosome prohibits the government from using its immense power to install a state religion or to interfere with individual matters of faith.

We often overlook the fact that in the late 18th century, the Founders posited the most profound institutional expression of religious liberty ever conceived by rendering it entirely in terms of what government may not do. "Congress," the First Amendment reads, "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The Founders had a healthy distrust of government, and for good reason. Governments in the thousand or so years preceding the birth of our nation often wielded the state's established religion to wage wars, persecute practitioners of unsanctioned faiths, and stifle progress that threatened the established order.

Infused with the spirit of the Enlightenment, constitutional architects such as Thomas Jefferson, James Madison, and George Mason sensed that a more perfect union would emerge not just from a representative democracy with a system of checks and balances, but also from the marketplace of ideas where reason, common sense, and the dictates of faith could mingle freely.

Thus was born a government that trusts human beings to govern themselves, but whose power is limited to prevent those entrusted with governance from curtailing individual liberties - such as the right to religious liberty.

Two-hundred-plus years later, questions concerning the interplay of government and religion still command our attention. Although you might be hard pressed to find anyone who does not support in principle the right of each person, free from government coercion, to practice the religion of his or her choice, we are still ironing out some of the thornier free-exercise issues.

RITUALS, LEGAL AND OTHERWISE

It was not too long ago, for example, that the U.S. Supreme Court had to decide if it would allow Oregon to prohibit American Indians there from practicing an ancient religious ritual involving the ingestion of substances found in nature that had been only recently made illegal. The High Court ruled that laws of neutral applicability that unintentionally burden religious practices do not infringe on the free exercise of religion

There are many around today who were schoolchildren when the Supreme Court had to determine if a public school - that is, a governmental authority-could compel a student to recite the Pledge of Allegiance even when the student's religion forbade such pledges to any other than God. In that case, the court ruled that the student had a right to refuse to recite the Pledge.

The Establishment Clause is more controversial than its constitutional dancing partner. Certainly the prohibition against a state-established church is almost universally embraced, but the sides divide quickly when the discussion turns to whether there should be, as Jefferson wrote, a "wall of separation" between church and state.

Strict constructionists say the Establishment Clause prohibits only the adoption of an official state religion and that the government should otherwise feel free to be involved with religious matters. But the prevailing legal opinion, at least for now, is that when the Framers banned laws "respecting" an establishment of religion, they meant any action taken by the government with the primary purpose or effect of promoting government-anointed religion.

Recent Supreme Court rulings demonstrate how nuanced Establishment Clause issues can be. In two cases involving displays of the Ten Commandments on government property, the court allowed a statue of the Decalogue to remain in a park adjoining the Texas capitol, but ordered a poster of the same to be removed from a Kentucky courthouse. The difference between the cases - indiscernible to the naked eye - rests largely on the intentions of the government officials who put up the displays.

HOW HIGH A WALL?

Good people can disagree on how high the wall separating church and state should be, just as they can disagree on when religious practices should trump government decrees designed to maintain public order. Whatever the case, it is clear that our Founders purposely coupled the Establishment Clause and the Free Exercise Clause as a double guarantee for religious liberty, and that they left us with broad, flexible language that can be adapted to apply to an ever-changing society.

In doing so, they launched a spectacular legacy of religious freedom that has spread not only to many other parts of the world, but also has taken root in the United States in ways that perhaps even they, prescient as they were, could not have envisioned.

Our constitutional tandem of free exercise of religion and separation of church and state has without question made us the most religiously free and diverse nation in the history of the world.

The facts speak for themselves. Not only are more different religious practiced here than anywhere else, but among the developed nations the United States has the highest percentage of people who believe in God, who regularly attend religious services, and who claim that faith plays a central role in their lives. And, while prejudice still exists against minority religions, serious conflicts based on sectarian differences are rare.

At a time when much of the world around us is torn apart by religious dissension, we should joyously celebrate our First Amendment mandate for religious liberty. We should be especially thankful that our Founders understood that the long dance to the music of time would require the Free Exercise and Establishment clauses to perform as a couple.

Willis is executive director of the ACLU of Virginia.