Passage of the Religion Clauses of the First Amendment (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . .”) was one of the first effective exertions of political muscle by minority groups in the United States. James Madison, usually credited with their authorship, initially found the idea of a Bill of Rights “highly objectionable.” During the early months of 1788, he tried to persuade his fellow Virginians that inclusion of a Bill of Rights in the new Constitution would be unnecessary, maybe even dangerous. Madison began to reconsider, however, when he found himself under attack for this position among his constituents. Baptists, previously his enthusiastic supports, were opposing the Constitution and threatening to support his opponent, James Monroe, in the congressional elections of that fall. Madison prudently changed his mind, and wrote to Baptist minister George Eve that he would now support “specific provisions made on the subject of the Rights of Conscience.” In return, the Baptists held an election rally at their church at which Pastor Eve took “a very spirited and decided part” for Madison and reminded the crowd of his “many important services to the Baptists.” (Those who think that church involvement in electoral politics began with Jesse Jackson and Pat Robertson do not know their American history.) Madison was duly elected to Congress and he did not forget his pledge. He became the draftsman and floor leader for what would later be called the First Amendment.
The Baptists had good reason to be concerned about religious freedom. As late as the 1760s, Baptists in Virginia were attacked, horsewhipped, fined, and jailed for preaching their faith. But they were not the only religious minority that felt threatened by the absence of a guarantee of religious freedom in the new Constitution. Some Quakers in Pennsylvania opposed the Constitution for fear that the new national government would not respect their conviction against military service. Representative Daniel Carroll of Maryland, one of only three Roman Catholics in the First Congress, spoke up for the proposed religion amendment, stating that “many sects have concurred in [the] opinion that they are not well secured under the present Constitution.” It is symptomatic of the unusual religious circumstances of America that a Roman Catholic should become the spokesman for the diversity of religious sects.
Certain groups that one might assume would have been deeply involved in the passage of the Religion Clauses, such as the Jewish community, in fact were not. Jews have in recent times become perhaps the quintessential constituents of the Religion Clauses, but at the time the Constitution was written and ratified, there were fewer than 2,000 of them in America and they played little role in the struggle for the First Amendment, either as victims of religious persecution or as advocates of religious freedom. It is true that Jews were excluded from public office in most states (Virginia and New York being the only exceptions as of passage of the First Amendment) and even from citizenship in otherwise pluralistic Rhode Island. But for the most part, Jews were tolerated and sometimes even welcomed. The Fundamental Constitutions of Carolina, issued in 1669, opened the colony to persons of “different opinions concerning matters of religion,” specifically mentioning “Jews, heathens, and other dissenters from the purity of the Christian religion.” Historians record that the small Jewish community in Puritan Connecticut received a respectful reception, even though the laws of the Empire mandated their exclusion. A Virginia newspaper in the early nineteenth century editorialized:
Whether we view the Jews historically or religiously—as one of the earliest nations of the earth, still existing in observation of their ancient usages—or as the chosen people of God, selected in the first instance to receive the dispensations of his will, and after, to sustain for ages, his wrath and displeasure—the view is calculated to fill us with sentiments of awe, admiration, sympathy, and reverence.
How widespread such sentiments were we do not know; we do know that anti-Semitism grew with the waves of Jewish immigration later in the century.
In any event, the struggle for addition of protections for religious freedom in the Constitution was led by evangelical Protestants. Once proposed by the First Congress, the First Amendment met with easy and widespread approval, not because the majority believed in religious freedom as a matter of principle—most did not—but because the sheer number of religious denominations made each feel vulnerable to the combined efforts of the others. Anglicans were dominant in the South, but a beleaguered minority in New England. Presbyterians were the most numerous denomination in New Jersey, but experienced protracted difficulties with the authorities in Virginia, who deemed them fanatical and objected to their practice of itinerant preaching. Quakers had strength in numbers in the middle colonies but nowhere else. The First Amendment was a product of minority religions, but every religion was a minority religion in America.
That ought to tell us something about the purpose and original meaning of the Religion Clauses. They were not intended as an instrument of secularization, or as a weapon the non-religious or anti-religious could use to suppress the effusions of the religious. The Religion Clauses were intended to guarantee the rights of those whose religious practices seemed to the majority a little odd. “Enthusiastic” was the word often used to describe the Baptists of that day, with much the same meaning as our opprobrious term “fanatical” today. Non-believers were protected from majoritarian religion, too, but we must not think that was the exclusive, or even the primary, focus of the religious freedom advocates of the Founding period.
Despite the origins of the Religion Clauses, the Supreme Court has not tended to interpret them in light of the concerns and fears of minority religions. In the first Religion Clause case decided on its merits, the Court in 1878 upheld conviction of a Mormon leader for carrying out his religious duty of polygamy. In the next case, a dozen years later, the Court upheld denial of the vote to anyone who supported polygamy, and that same year the justices sustained an Act of Congress abolishing the Mormon Church and expropriating its property. In the course of countenancing this, the most brutal act of official religious suppression in this country since adoption of the Bill of Rights, the Court added insult to injury by questioning whether any belief so bizarre as the Mormons' advocacy of polygamy could even be given the title of “religious” and thus claim the protections of the First Amendment. Only when the leaders of the Church received a revelation repudiating the practice of polygamy, thus conforming to the usual family structure of the United States, were the Mormons allowed to practice what was left of their religion in peace.
Over the course of time the Supreme Court became more sensitive to those who do not share the majority's religious outlook. It for example gave extensive protection to the often annoying practices of the Jehovah's Witnesses, guaranteed access to unemployment compensation to those who celebrate the sabbath on Saturday, allowed the Old Order Amish to remain separate from the secularizing influences of the upper grades of high school, and put an end to organized “nondenominational” prayer and Bible reading in the public schools. But the Court's record remained mixed. It has turned a blind eye to the claims of Orthodox Jews in two cases involving them as well as to plausible claims by Muslims, fundamentalists. Scientologists, practitioners of Native American religions, and others outside the religious mainstream.
On the Establishment Clause front, the Court also entered decisions that run counter to the interest of religious minorities in maintaining a separate identity. One of the major subjects of the Court's attention has been the issue of aid to religious schools. Private religious-school systems were formed by minority religious groups precisely to avoid assimilation into the majority religious culture, originally Protestant, now largely secular. These schools are a principal means for preserving corporate religious identity. The decisions of many states to extend to students attending these schools some fraction of the support they would receive if they went to public schools have, however, repeatedly been struck down by the Supreme Court under the Establishment Clause. The effect of these decisions has been to force children of lower and middle income families into the melting pot of public education.
The Supreme Court evinces little recognition of the central place of religious pluralism, hence minority religions, under the First Amendment. As a matter of formal legal doctrine, the Court's interpretation of the Free Exercise Clause may seem to indicate the contrary. According to the Court, the Free Exercise Clause prohibits the government from enforcing laws and policies that burden the practice of religion unless they are the least restrictive means of achieving a compelling governmental purpose. While the Clause applies equally to members of all faiths, it is particularly important to members of small, unknown, or unpopular religions, since more numerous and influential religions are better able to protect them- selves in the political sphere. But while the free-exercise doctrine sounds protective—the language is as strong as that used to bar overt racial classifications—the application falls considerably short of the words. Since 1972, the Court has rejected all claims for free-exercise exemptions, other than those involving unemployment compensation, which are governed by clear precedent going back to 1963. Far from requiring a compelling justification and a search for less restrictive alternatives, the Court appears to accept virtually any government reason for imposing a burden on religious practice.
The Establishment Clause doctrine of the Court does not even give verbal support to religious pluralism. Under the so-called “Lemon test” (Lemon v. Kurtzman, 1971), government actions are condemned if they lack a secular purpose, if they “advance” religion, or if they threaten to “entangle” government with religion. It may well be that it is Lemon that is most responsible for the anemic enforcement of the Court's free-exercise doctrine, since a vigorous defense of the free exercise of religion is non-secular, advances religion, and often embroils government in issues of religion. To the degree we are serious about the Lemon test, we correspondingly downplay or ignore the free-exercise doctrine.
A recent case involving a Native-American religion illustrates the point. In Lyng v. Northwest Indian Cemeteries Protective Association (1988), members of the Yurok, Karok, and Tolowa Indian tribes of Northern California challenged the decision of the Forest Service to build a logging road through an area called the “High Country,” in which the Indians practice their spiritual devotions. On the basis of a study commissioned by the Forest Service and the evidence presented in court, the lower courts concluded—and the Supreme Court accepted—that construction of the road would “virtually destroy the Indians' ability to practice their religion.” Moreover, it was essentially conceded that the government's interest in building the road was less than compelling; to many, the road looked like an utter boondoggle. It should have been an open-and-shut case for the Free Exercise Clause.
Instead a majority of the Court rejected the Indians' claim on the theory that the government can do whatever it wants with “its land.” How the government's exercise of its property powers under Article IV, Section 3, Clause 2 somehow attained exemption from the Bill of Rights remains unexplained, but that was the Court's decision.
The significant point about the Indians' argument in Lyng is that they were asking the government to violate all three of the prongs of the Lemon test. The secular considerations favored building the logging road; the Indians asked that non-secular reasons be considered as well. That violates Lemon. To preserve the sacred area in its pristine form would surely advance the Indians' religion. That violates Lemon. And to ask the government to regulate its land use in accordance with the religious significance some place on particular areas is to ask the government to be deeply entangled in religious affairs and to make delicate religious judgments. That violates Lemon too. The government evidently was faced with a choice between violating Lemon and saving the Indians' religion, or saving their religion and violating Lemon.
This dilemma is the predictable result of a legal formula that does not distinguish between advancing religion and advancing religious freedom. The Lemon test prohibits the government from “advancing” religion. But it necessarily advances religion to accommodate the secular dictates of public policy to the spiritual needs and concerns of religious minorities. The Lemon test is therefore a serious impediment to a policy of religious pluralism.
This is not to say that everything the Court has done under Lemon is wrong. There are, indeed, practices that advance a particular view of religion (usually, if not always, a generic Protestantism), and these should be invalidated. Spoken school prayers are the most notorious example; others include anti- solicitation statutes that target new religions and statutes requiring the teaching of creationism. But the problem is that Lemon does not provide a means to distinguish between the good and the bad. By forbidding all government action that has the effect of “advancing religion”—even by preserving its free exercise—the Lemon test fosters secularism, not religious pluralism.
One Justice, Sandra Day O'Connor, has called for abandoning the Lemon test and has proposed a new formulation expressly oriented to the needs of religious minorities. Her approach warrants quotation at length:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institution, give the institution access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.
While I do not think Justice O'Connor's proposed “endorsement” test will work as a practical test for deciding cases, it is significant, and hopeful, that she has addressed her attention to the religious “outsider,” for whose protection the Religion Clauses were adopted. Perhaps this will mark a turning point for the Court as a whole.
Unfortunately, Justice O'Connor has gotten the matter only half right. She is correct that an important element of religious freedom is that those who maintain beliefs at variance with the mainstream should not be made to feel like “outsiders, not full members of the political community.” But that is not all there is to religious freedom. It is equally important that those who maintain beliefs at variance with the mainstream should be permitted to act like outsiders, and to keep their distance from the mainstream. Assimilation and secularization are threats to religious pluralism equally as serious as intolerance and ostracism.
And this is where the Supreme Court is most prone to be insensitive. Overt official acts of intolerance are, thankfully, rare in this society, and would, I am confident, be squelched by the courts if they occurred. But America's secularized Protestant culture presses about us from all sides with subtle nudges to conform. It invites us, it tempts us, to become full insiders even when we are not.
A few examples may help. Captain Simcha Goldman was an Air Force officer and an Orthodox rabbi (Goldman v. Weinberger, 1986). In keeping with his faith, he insisted on wearing a head covering at all times, including occasions when military uniform regulations forbade the wearing of headgear. Captain Goldman was not especially concerned that he would be made to feel like an outsider in this respect. In fact, one of the purposes behind the religious tradition of the skullcap, or yarmulke, is that it is an outward sign of obedience to God that sets Jews apart from others. At a profound spiritual level. Captain Goldman was an outsider to this community, and he wanted to act like one. His desire came into conflict with the military's rules, for the very purpose of those rules was to “encourage [!] the subordination of personal preferences and identities in favor of the overall group mission,” and to “eliminate outward individual distinctions except for those of rank.” Captain Goldman's ability to maintain his visible identity as a Jew— as an outsider—was at odds with military uniformity. He refused to doff his yarmulke, and was expelled from the Air Force as a result. And although seven of the nine Justices concluded that the effect on military morale from allowing an exception would be minimal, the majority nonetheless upheld the Air Force's rules and decision.
More encouraging is the story of Wisconsin v. Yoder (1972), in which families belonging to the Old Order Amish community protested the requirement that their sons and daughters be forced to attend school beyond the eighth grade. As in the Goldman case, their principal concern was not that they would be made to feel like outsiders. Even more acutely than Captain Goldman, they wanted to be outsiders: their entire religious way of life is built around separation from what they view as a sinful world. They dress differently, abjure television and radio, drive buggies instead of automobiles, live in isolated rural communities, refrain from voting, decline Social Security and welfare benefits in favor of taking care of their own, and generally refuse to participate in the culture of the outside world. That is why they objected to high school. By the end of eighth grade, their children had learned all they needed for life in the Amish community, and additional schooling would amount to enforced indoctrination into a world of which they heartily disapproved. To the credit of the Supreme Court, the Justices understood the families' position and respected their right to remain as outsiders.
Less fortunate were the trustees of Georgetown University in Washington, D.C. Their standing as “outsiders” is considerably more attenuated than the Amish, for they wished to participate actively in the intellectual and cultural life of the capital by operating a first-class university. Their problem was that they wanted to do so in accordance with the moral precepts of the Roman Catholic Church, which recognizes Georgetown as one of only two pontifical universities in the United States. It might be said that the trustees wanted to be in the world but not of it. One of their moral precepts is that homosexual practices are sinful. This belief is at odds with the law of the District of Columbia, which forbids discrimination on the basis of sexual preference. A group of Georgetown students formed a gay-rights group and approached the University with a request for recognition as an official student group, along with access to meeting rooms, offices, clerical help, and a subsidy. Georgetown refused. Its religiously grounded moral convictions did not permit the University to maintain a position of support for, or even neutrality toward, the advocacy of homosexuality as a legitimate sexual alternative. This refusal ran afoul of the District's law, and the District's law was held to override the University's right to enforce Catholic morality within a Catholic school.
My point is not that the gay students of Georgetown should be made to feel like outsiders, any more than the officials of the University should. For purposes of this discussion, let us assume that the District's position is correct and enlightened and that Georgetown is morally wrong. But the danger of suppressing the conscientious practice of a religious minority is greater than the advantage to be gained by allowing the majority's moral precepts to be enforced universally, without exception. In the wider society of the District of Columbia, homosexuals do not depend for their survival on extracting the support and subsidy of a private religious organization. They have the support and protection of the law, as well as the culture and the market. But Georgetown's ability to maintain its position, at variance with the mainstream, was on the line. Unlike the gay students, who could meet to their hearts' content in the wider community, Georgetown was faced with only two choices: compromise its religious faith or get out of town.
It behooves us to recognize that protecting religious minorities will sometimes mean protecting and perpetuating practices we deem morally repugnant. Religion is not necessarily inoffensive. But if we are committed to the proposition that the claims of God are not subject to authority of civil government but commended to the consciences of believers, then we will be forced to tolerate some claims that seem to us very wrong. Only if we have very powerful reasons— a compelling justification—independent of any purpose of enforcing moral and religious homogeneity for its own sake can the government intervene.
It may not be inappropriate here to quote from Gamaliel, the revered first-century rabbi, writing at a time when the Jewish authorities were considering how to respond to a new and unsettling religious minority. “Men of Israel,” he said,
take care what you do with these men. For before these days Theudas arose, giving himself out to be somebody, and a number of men, about four hundred, joined him; but he was slain and all who followed him were dispersed and came to nothing. After him Judas the Galilean arose in the days of the census and drew away some of the people after him; he also perished, and all who followed him were scattered. So in the present case I tell you, keep away from these men and let them alone; for if this plan or this undertaking is of men, it will fail; but if it is of God, you will not be able to overthrow them. You might even be found opposing God!
And the Book of Acts records that the Sanhedrin followed Gamaliel's advice and released the Christians from imprisonment. We need more of the spirit of Gamaliel in our constitutional law.
One place to begin is with the formal doctrine of the Supreme Court. The first step is to develop an interpretation of the two Religion Clauses that makes the Free Exercise Clause and the Establishment Clause consistent and complementary rather than antagonistic toward one another. This requires a return to the original purpose for prescribing constitutional protections for religious freedom: the protection of differences of opinion in matters of religion. The evil is not religion, but enforced religious uniformity.
A modified test might look like this: 1) A law or policy is unconstitutional if its purpose or likely effect is to increase religious uniformity either by inhibiting the religious practice of the person or group challenging the law (Free Exercise Clause) or by forcing or inducing a contrary religious practice (Establishment Clause); 2) a law or policy is unconstitutional if its enforcement interferes with the independence of a religious body in matters of religious significance to that body; 3) violation of either of these principles will be permitted only if it is the least restrictive means for (a) protecting the private rights of others, or (b) ensuring that the benefits and burdens of public life are equitably shared.
I believe that this would return to the original conception of religious freedom in the United States—not a freedom of submergence and invisibility, but a freedom of open, boisterous expression and celebration. Those who led the drive for religious freedom in America had a horror of religious authoritarianism, and their solution—possible only in a nation as diverse as this—was to allow each religious group “to flourish in accordance with the zeal of its adherents and the appeal of its dogma,” to use Justice Douglas' turn of phrase.
Those who have led the fight to preserve religious freedom in the succeeding years have never lost that horror of religious authoritarianism. But some of them have favored a different alternative—the alternative of a public, and often even a private, secularism. Some members of minority religions have taken this position, and it is easy to understand why. If religion is the point of division between themselves and the mainstream, then it is best to make religion as irrelevant as possible, so that our differences will become irrelevant. And some members of the Protestant majority have taken this position as well, perhaps because of an embarrassment at any public witness of the faith they prefer to keep private. And of course some of those who have no faith at all (if secularism is not a faith) have taken this position, for it removes a source of competition for secular ideologies that they hope to see guide the culture.
Many who have taken this position, of whatever religious conviction, are sincere and even courageous opponents of religious authoritarianism. But their position, when taken to its extreme, is a demand for freedom from religion, not freedom of religion. And the society they would create is not one of religious diversity but of a dull and conformist secularism. It approaches what Justice Goldberg described as a “brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.”
Notwithstanding occasional excesses of the religious right, the greatest force for religious uniformity in the United States today is this devotion to the secular. It does not usually come in the form of a militant atheism, openly denying the possibility of a sovereign God. Most often it comes in the form of mores, sometimes reinforced by law, that make it uncomfortable or costly to put one's religious principles into practice in public. And for those who think their faith should control their life and action, the intolerance can be degrading, and all the worse because it will often be the outsider whom the culture labels “intolerant” and “closed-minded.”
There is not much that the law can do about this form of intolerance. But at the very least, the law can serve as a reminder that our Constitution envisions a different course. As the Equal Protection Clause has contributed to an ethic of racial nondiscrimination and good will, so the Religion Clauses could contribute to an ethic of religious diversity, pluralism, and freedom. I believe it is increasingly true that the more committed believers of various religious faiths feel a sympathy and a solidarity with their counterparts in other religions far exceeding their sympathy with the secularized mainstream, and that they can, and will, make common cause in the fight against enforced secularization.
But perhaps there is nothing new in this. Colonel John Trumbull, the noted portrait painter, described in his Autobiography a remarkable dinner party at the home of Thomas Jefferson in 1793. Despite Jefferson's authorship of Virginia's Bill for Establishing Religious Freedom, he was anything but tolerant in matters of religion. Later in life, after his retirement from politics loosened his tongue, Jefferson referred to Athanasius and Calvin as “impious dogmatics,” and their religion (that is, Catholicism and Reformed Protestantism) as a “counter-religion made up of the deliria of crazed imaginations.” The theology of Judaism he called “degrading and injurious,” and Jewish ethics he called “repulsive.” His own particular view of national religious perfection would be for all to become Unitarians.
At the dinner party, Trumbull was “scarcely seated” when another guest began to berate him for his religion, which was Congregational. Though considering himself “in no degree qualified to manage a religious discussion,” Trumbull made an attempt to defend his faith as best he could. The guest “proceeded so far at last, as to ridicule the character, conduct, and doctrines of the divine founder of our religion.” Trumbull reports that Jefferson smiled and nodded approbation on his aggressive guest, while Trumbull himself became more and more annoyed and uncomfortable. Others at the party gave Trumbull no support, until David Franks took up the argument on Trumbull's side. Trumbull then remarked to his host:
Sir, this is a strange situation in which I find myself; in a country professing Christianity, and at a table with Christians, as I supposed, I find my religion and myself attacked with severe and almost irresistible wit and raillery, and not a person to aid me in my defense, but my friend Mr. Franks, who is himself a Jew.
We would do well to note the example and do likewise.
Michael W. McConnell is a professor in the School of Law at the University of Chicago. He has argued before the Supreme Court in cases involving the free exercise of religion.