Religion in the US
wenell
Interpretingthe1stAmendmentonReligion.pptInterpreting the 1st Amendment
Interpreting the 1st Amendment on Religion
These PowerPoint slides are to help you think about various ways in which the 1st Amendment’s religion clauses have been interpreted. The Gaustad text gives many individual cases, and many questions and much of the discussion board focuses on those cases. This is to provide a context for the Gaustad text.
The 1st Amendment on Religion
The First Amendment has two clauses on Religion:
The Establishment Clause
“Congress shall make no law respecting an establishment of religion…”
The Free Exercise Clause
“…or prohibiting the free exercise thereof.”
The 1st Amendment on Religion
It is the job of the Courts (ultimately, the US Supreme Court) to interpret and apply the Constitution. Historically, there are a series of cases dealing with each clause.
While there is much agreement about what is meant by each clause, there are also disagreements about how to interpret the clauses.
Interpreting the Establishment Clause
Historically, there has been unanimity about certain things meant by the establishment clause.
This includes the fact that tax money cannot be used to pay ministers or build churches, and the government cannot say who can or cannot be a minister. Each would be a violation of the establishment clause.
Interpreting the Establishment Clause
While there is basic agreement about certain things, there are also two diverging tendencies in the interpretation of this clause.
These two tendencies are called:
Strict Separationist View
Accomodationist View
Interpreting the Establishment Clause
Strict Separationist View
This view wants to separate religion and the state as far as possible. It says the state must promote only secular affairs. The state must not advance or prohibit religion. The state should not become excessively entangled with religion.
Strict separationists tend to say both government and religion do their jobs best when they stay as far apart as possible. This group fears the compulsion of religion by the state. They say when the state promotes religion it puts the state in a power position it should not have, and it harms religion, which should always be private and voluntary.
Interpreting the Establishment Clause
2. Accomodationist View
This view says the state can favor and promote religion by allowing some forms of religious expression (the state can “accommodate” religion). At the same time, the state cannot favor one particular Christian denomination over others, nor can it favor one religion over others. If it did this, the state would promote some sectarian point of view held by some people, while excluding others. The state is not to promote one denomination or one religion, but it can promote some broad sense of religion or religiousness.
Accomodationists say if the state does not allow some religious expression, then it looks like the people it represents are non-believing people when in fact most US citizens are believers. In some sense, the state should reflect the historic and current religiousness of the American people.
Interpreting the Establishment Clause
In each of the examples below, imagine what a Strict Separationist would say and what an Accomodationist would say and why. Cases dealing with these issues have all gone to the Supreme Court and are discussed by Gaustad.
- Should the 10 commandments be displayed in a courtroom?
- Should there be a nativity scene on display at Christmastime on state property (e.g. city hall)?
- Should prayer be promoted by officials (teachers and administrators) in the public schools?
- Should “under God” be maintained or dropped from the Pledge of Allegiance, which is said in public schools?
Interpreting the Free Exercise Clause
Like the Establishment clause, historically, there has been unanimity about certain things meant by the free exercise clause.
For example, groups can gather to worship, pray, and study sacred literature without government interference. These groups can promote their ideas to others. The state cannot regulate these meetings or tell people what to believe. The state cannot stop new religious groups from forming, whether these groups are Christian or non-Christian.
Free Exercise Interpretations
While there is basic agreement about certain things, there are also two diverging tendencies in the interpretation of this clause.
These tendencies are called:
Libertarianism
Communitarianism
Free Exercise Interpretations
Free Exercise issues often have to do with the limits of what can be done when certain groups of people claim for religious reasons they should be allowed to violate ordinary secular laws or behaviors prescribed by a state entity or state-funded entity.
For example, at every worship service of some Christian denominations, alcohol is served to minors at communion. Technically, this is a violation of a secular law. However, it is allowed under the “free exercise” of religion. How much one should allow these kinds of exceptions for religious reasons is what separates libertarians from communitarians.
Free Exercise Interpretations
Libertarians claim that as much as possible ordinary secular laws should be set aside for members of certain religious groups who follow teachings that violate those secular laws. It is only if the state has a “compelling interest,” that the state can intervene and tell people they cannot violate secular laws for religious reasons.
Libertarians are concerned with protecting religious minorities and allowing them maximum religious expression. They think the constitution should be interpreted to protect and promote social diversity in religious matters.
Free Exercise Interpretations
Communitarians claim that as much as possible, all people of all religious groups should have to follow all secular laws. Exceptions to the following of secular laws for religious reasons should be minimal (like serving wine to minors at communion). As much as possible, if a law has a “valid secular purpose,” it should be followed by everyone.
Communitarians want to set limits on the diversity of religious expression. They want everyone to follow the same secular laws as much as possible and so promote good order, and social unity and identity.
Free Exercise Interpretations
In each of the examples below, imagine what a libertarian and a communitarian would say and why. Cases dealing with these issues have all gone to the supreme court and are discussed by Gaustad.
1. If it is school policy for all children to say the pledge of allegiance to the flag, should some children be exempt if for religious reasons they claim they are not to pledge allegiance to anything but God?
Free Exercise Interpretations
If a city or county law says people cannot go door to door soliciting without a license or paying a fee, can someone go door to door making religious solicitation (trying to convert people to their religion or invite them to their church) without a license or paying a fee?
Can Native Americans smoke a banned substance (peyote) as part of their traditional religious practices?
Can those who practice animal sacrifice do so when it violates animal cruelty laws of a city or state?
Can people refuse to have their children treated for medical conditions because their religion forbids it even though those children may be sick and have a greater chance of dying?
Combining the Clauses
Establishment and Free Exercise interpretations can be combined. In each case, the combination says something different about what kind of society we should be at least regarding the expression of religion. Different Supreme Court justices lean toward one or another of these different kinds of combinations, as do legislators, and, of course, ordinary citizens.
Combining the Clauses
Strict Separationism and Libertarianism
This combination minimizes as much as possible any public support for and expression of religion. It seeks to maximize the private expression of minority religions, even when this expression violates secular laws or policies.
The public sphere looks secular but the greatest possible expression of private religious diversity is promoted.
2. Strict Separationism and Communitarianism
This combination minimizes as much as possible any public support for and expression of religion. It seeks to minimize the private expression of minority religions when this expression violates secular laws or policies.
The public sphere looks secular and private religious diversity is limited.
Combining the Clauses
3. Accomodationism and Libertarianism
This combination maximizes the public support for and expression of religion. It also maximizes the private expression of minority religions, even when this expression violates secular laws or policies.
The public sphere can look religious and the greatest possible expression of private religious diversity is promoted.
4. Accomodationism and Communitarianism
This combination maximizes the public support for and expression of religion. It seeks to minimize the private expression of minority religions when this expression violates secular laws or policies.
The public sphere can look religious but private religious diversity is limited.
