Politics and Religion

1. Politics and Religion Dr. Troy Gibson

2. I. Course Introduction A. Why study religion and politics? • Relevance in Political History (Western Civilization) • Relevance in American History • Relevance in Political Philosophy • Relevance in Political Debate • Relevance in Political Outcomes (parties, policy, voting, elections, groups, etc.) • Applies to us all? The political question, then, is not, How does religion relate to non-religious politics? but rather, What kind of politics—what stances, arguments, policies, and principles—flow from different religions or ways of understanding the world and life, whether they are older (traditional) or newer ‘religions’? We will not understand the political dynamics of the contemporary world until we recognize the religiousness of all peoples and cultures and the differences among their basic assumptions about human flourishing and their diverse impacts on political and economic developments. *Someone may argue that religion ought not be relevant, but it would be mistaken or naïve to say that it isnot relevant.

3. The place of politics and religion in America (comparatively speaking). Neither Iran, England, France, or Sweden. No homework on Wednesday nights; government offices closed on Sundays; out on Easter and Christmas. Peter Berge: “If India is the most religious country on our planet, and Sweden is the least religious, America is a land of Indians ruled by Swedes.” Instead, we have a sort of “permissive establishment” of religion here, where the major religion is accommodated in public life (not oppressive, not prescriptive, not entirely secular). C. How will we study R&P? Where do we limit the study? Course will focus mostly on most dominant religious groups, movements, events, trends, in American political history and behavior.

4. II. But What about the Secularization thesis? A. Definition: Religious belief and practice is (and ought to be) decreasing in relevance & acceptance as human progress is advanced through modernization and globalization. B. Evidence – Religion is ‘safe’ and irrelevant • Decline of religiosity (in Europe, at least) • Rise of dualism (division of sacred/secular airtight categories) and the privatization/secularization of Christianity (America); paradigm shift; Christian and religious categories, once taken for granted, no longer welcome as lenses through which we must interpret the world; from 1950-today America moved from dualism towards postmodernism. (Example: Bible-theft). • How pervasive? Can you imagine a research program or department who’s whole mission was to examine the phenomenon of secularism? • Responses to naturalism by Christians, a new protestantism: growth in subjective faith, growth in experiential faith; growth in relative faith; growth in spiritualism; decline of traditionalism and growth in secular marketing strategies (p. 15 Wald).

5. C. Causes of Secularization • Dualism in Theology (Aquinas division of Nature and Grace) • Dualism in Philosophy - Especially articulated in the thought of Immanuel Kant, we divide knowledge, truth, and all activity into revelation vs reason, science vs faith, fact vs value, etc. This, we say, is the nature of knowledge and we add that matters of faith, values, and revelation (religion) are of private use only while matters of fact, science, and reason are of public use. • Great Awakening’s identification of Christian life with individual experience, not testable truth claims and corporate confessions of faith. • Surrender of the fundamentalists (1900-1970) 5. Rise of the secular left (1850-1950) - This group eventually gained control of the public/social institutions and successfully argued that anyone who wants to play with them must use their ball (secular or naturalistic assumptions about the world). Successfully changed basic understandings of science, education at all levels, public philosophy, church-state doctrine, model of personhood (from the soul to the psychologized self), and journalism. Notice: interest was not a neutral public space, but a new moral order (and toppling of the old Protestant one). Next generation gave us the 1960s revolutions and postmodernism.

6. 6. Growth of Modern Government – Government was once limited to “commerce and civil order” and the church focused on charity and inculcation of goodness and truth. But when gov’t expanded its role (welfare-regulatory state), it pushed religion to those areas not important enough to have received the help/control of government (margins of public life). 7. Public Education – For secular elites, the goal was to create universal centers of intellectual reconstruction, where successive generations are trained exclusively in secular methods and eventually secular perspectives on. For protestants, it was to help the poor and (and in some cases, undermine catholic education). Result: secular thinking and secular viewpoints training over 90% of the last few generations. The 1960s was not accident. (Read p. 133 of Baker)

7. D. Challenges to secularization (in addition to the U.S. itself) – (1) birth, marriage, immigration patterns in U.S. and especially Europe (2) stable beliefs and practice of evangelicals despite economic incline; regular church attendance in U.S. well over 50% (3) growth of Islam and Christianity worldwide (4) return of theology in American evangelicalism (SBC 30% ministers Reformed) (5) Argument that secularization is not non-religious; Some religions are traditional, some are new, and among the new religions are those guided by a secular faith, a belief system held by communities whose gods--which they do not acknowledge as gods—are the idols of human autonomy, scientific rationality, technological progress, the nation, economic growth, a communist future, or sheer power in itself (6) argument that religion persists because it, and not science, satisfies a basic human need, the desire to explain and existence/life as meaningful (7) resurgence of religion in public life in the name of government neutrality (result of postmodernism)

9. III. Worldview and Presuppositions A. What is religion? A lot of the confusion about the role of religion in politics comes from our assumptions about religion, or how to define it. If religion means traditional rituals or practices of organized faith communities, then not all are religious (popular view in the West). If religion means adherence (wittingly or otherwise) to a philosophical system, basic beliefs about what is ultimately real, true, right, valuable, and meaningful, then everyone is religious; i.e., we all have a worldview. B. 7 Worldview Questions from James Sire • What is prime reality? • What is the nature of external reality? • What is a human being? • What happens at death? • Why/how is it possible to know anything at all? • How do know right from wrong? • What is the meaning of human history?

10. C. If the worldview concept is correct (everyone’s got one), then one could never divorce religion from politics. Worldviews do not cloud our judgment, they determine our judgment. There is no “free-thinker,” can’t judge religion except on the basis of another religion; GK Chesterton and the universal reality of dogmatism. AND. If politics is about the authoritative allocation of values (choosing which values to legislate), then politics necessarily is informed by worldview convictions about what values are best for society.

11. IV. Religious Arguments in Public Discourse (Draw 2 Circles – Religion/Politics • NO! KEEP RELIGION IN CHURCH! 1. Simple argument • Different beliefs about God • Differences may lead to violence • With no certainty about religion, avoid religion in public space • John Rawls and the doctrine of Public Reason Problem: How can people committed to different worldviews live/work 2gether as equals in a fair peaceful society? Answer: Limit reasons to only those premises held in common by all (‘overlapping’) and assume all citizens participate from behind a ‘veil of ignorance’, where no one knows what status they will hold in life. Result? Just society and possibility of ongoing conversation in public.

12. 3. Natural Law - In politics, we use science and reason (accessible to all by God’s natural revelation). In religion, we use special revelation (word of God). Robert George agrees that religious reasons must not be used as political reasons. He only argues that Rawls must not limit political reasons to only those reasons held in common by all people. As a natural law philosopher, he insists that some truths can be ascertained by all through unaided natural reason and are therefore acceptable in the public square, even if not all citizens recognize them or even if these naturally discerned truths are rejected by many. If Rawls requires ‘overlapping’ reasons, George requires ‘natural’ reasons, but both ultimately reject revealed or religious reasons.

13. B. YES! PERMIT THE DIFFERENT VOICES! (some public subject matter, say justice, overlaps and is relevant in one’s religious concerns; concentric circles) 1. Critiques of Rawls – Not consistent with liberal democracy, free speech, or pluralism; discredits men like MLK and movements like the abolition movement; inconsistent with government neutrality since secularism/naturalism differ with Christianity, for instance, only in content not form; conceived using a non-neutral view of human nature (individual, atomistic, utility maximizing); conceived towards a desired result, the case of abortion and slavery (original position vs public reason); self-defeating since Rawls’ assertion that only reasons held in common are permissible is itself a principle not held in common by all, so it too should be excluded; conversion shows that religious or worldview-premised arguments are not “inaccessible” 2. Nicholas Wolterstorff’s critique of Richard Rorty (FROM THE READING)

14. Key concepts in Political Theology A. Opening questions - do the spheres overlap? A word about political theology vs political ideology; or perhaps political idolatry? Reductionism: B. Key questions 1. What is breadth and depth of Creation-Fall-Redemption? 2. What is the nature of the kingdom of God/Christ? What about the New Heavens and New Earth (passing away?) 3. When and how is that kingdom realized? (Millennium-Eschatology) 4. How adequate is natural revelation for all of life? • Is the state supposed to enforce the moral law of God. What about the first table? C. Christ and Culture (Reinhold Neibhur) • Christ against Culture (opposition; ‘Holy Huddle’ escapism; the culture is lost and evil and Christians should separate themselves entirely); Quaker, “third-race” sectarians; Anabaptists traditions • Christ of Culture (agreement; whatever is good/enjoyable/helpful in culture is coextensive with Christianity; no conflict at all); 19th – 20th century liberal Protestantism (Jefferson)

15. Christ above culture (grace perfects nature; synthesis where culture is finished off by church; culture can lead you to God but church must take you the rest of the way); Aquinas and Roman Catholic tradition • Christ and culture in paradox (tension; dualist); Lutheran • Christ transforms culture (reformational; creation is good being misdirected and is in need of recreational work of Christ through Christians); Calvinistic and social gospel movement D. Political Theologies (Historic) • Strong Separation Models – Baptist (historic) and Anabaptist traditions (God’s rule ended at the cross); Fundamentalists early 20th century. My kingdom is not of this world; Be ye not conformed to this world. • Interactive You are salt and light; In but not of the world; thy kingdom come; cultural mandate in Genesis • Indirect influence: Lutheran Two Kingdom theory (state is not evil, but irrelevant for the church (except in gross injustice); Christians are dual citizens of two non-overlapping God ordained kingdoms operating under separate purposes, ethical codes, means, etc.). • Direct influence: Vatican II-Roman Catholic (subsidiarity and solidarity) and Dutch Reformed Protestant Principled-Pluralism (this neo-Calvinist seeks to find biblical principles of justice that apply without preference for one professed faith over another, in a diverse society); Neo-evangelicalism (response to fundamentalist withdrawal; engage every front, but tempered by degree of scriptural clarity; expect neither utopia or ruin); Liberation Theology (theology from the oppressed)

18. 3. Strong Church-State Affinity – Trent - Roman Catholic, Erastian-Anglican, National Confessionalist and Christian America groups (Puritans and the Christian commonwealth). All authority has been given to me in heaven and earth (Matt. 28:18) *Again, the key determinants of these models is one’s view of eschatology (when Christ returns), continuity between testaments, view of the state in NT (permissive or restrictive).

19. I. Religion in American Political History • Religious Groupings based on affiliation surveys • Evangelical Protestants (26.3%) – trace their heritage to the Protestant Reformation of 16th century and Great Awakenings of the 18th and 19th centuries); doctrinal distinctives: stress the final, reliable, and sufficient authority of the Bible in all that it affirms; typically stress the exclusive truth of Christianity and universal need for justification before God through faith in the substitutionary atoning work of Jesus Christ. E.g. Southern Baptists, Presbyterian Church of America, Assemblies of God. • Mainline Protestants (18%) – same heritage, but have departed from the traditional doctrines (especially regarding scripture: bible contains/becomes, but is not, the very Word of God) from the Reformation in light of modernity and scientific theories of Darwin (indeed, no unifying system of doctrine). E.g. United Methodists, PCUSA, United Church of Christ. Less likely to accept a literal Hell or universal need for conversion. More likely to stress social justice. *High percentage of evangelicals attending mainline denominations (South).

20. Roman Catholics (24%; 46% of immigrants are Catholic; 29% of all Catholics are Latinos; youngest cohort split between whites and Latinos) – considers itself to be the original and one true church of Christ through apostolic succession from Peter and the apostles. Distinguishing doctrines: Ecclesiastical supremacy, necessity, and infallibility of the church, headed by the Pope or Bishop of Rome in all matters of faith. Religious authority is divided between tradition, scripture, and teaching magisterium • Historically Black Protestant denominations (7%); born out of revivalism in the late 18th and early 19th century; largest is Church of God in Christ • Unaffiliated or Secular (16%; doubled in 20 years; 25% of 18-29; 5-7% atheist or agnostic) • Secular (7) – free from” religion” and stress belief in the powers of human reason over revelation in the discovery of truth (secular humanism). • Atheist, Agnostic (4) – considers the evidence for God’s existence to be unpersuasive (they may then disbelieve or leave it at that). • Unaffiliated Believers (5) • Others: Mormon 2%; Jews 2%; Muslim 1-2%; Hindu, Buddhist, Jehovah Witness, Orthodox, Other Christian, all under 1% each

21. Brief Church and State History Leading to American Birth “The American founders revolutionized the Western tradition of religious liberty. But they also remained within this Western tradition, dependent on its enduring and evolving postulates about God and humanity, authority and liberty, church and state.” • First Millennium • Christians came out of periods of extensive and intensive persecution by the Romans. They were noncomformist (refused to worship pagan gods or Ceasar) and agitators (sought to transform pagan society with Christian morality; charity, burials, infants, social customs). Emperor Julian “These impious Galileans not only feed their own poor, but ours also; welcoming them into their agapae, they attract them, as children are attracted, with cakes. Whilst the pagan priests neglect the poor, the hated Galileans devote themselves to works of charity, and by a display of false compassion have established and given effect to their pernicious errors. See their love-feasts, and their tables spread for the indigent. Such practice is common among them, and causes a contempt for our gods.” • Persecution ended when Emperor Constantine converted to Christianity, signed the Edict of Milan (311) tolerating all religious beliefs though privileging Christianity some.

22. Future emperors, however, began to pursue a policy of preference and control over Trinitarian Christianity (supreme over church and state). • Augustine put these realities together in City of God (413-427), where he argued that Christians are members of a different city (not city of man), but it would be better for all if the rulers of the city of man favored Christianity (though institutionally separate from, if not under, church authority). BUT, few emperors could resist urge to consolidate and control the spheres. He further refutes Roman superiority as fulfillment of history (focal point). Rather, no state (Christian or otherwise) can be identified as God’s Kingdom on earth; heavenly kingdom is always future. • Papal Revolution – changed all that after 1050 when a series of Popes moved towards ecclesiastical separation from and even control of civil leaders (Catholic independence). 1. Canon Law - The papacy claimed expanded jurisdiction in law, treatment of non-Christians, church life, and political matters. Out of these papal pronouncements, we get “Canon Law” (first modern body of international law). Based on notion that Pope had “two-swords” (civil law and canon law, where canon in superior to civil). Whole systems of law developed around seven sacraments (baptism, eucharist, penance, orders, extreme unction, confirmation, and marriage). 2. Rights – a whole body of legally recognized ‘rights’ emerged

23. out of this tradition. These rights constrained church/state and protected the Catholic faithful (not others) from arbitrary or oppressive ecclesiastical and civil decisions. • This system of international law began to break down as nation-state kings asserted their own territorial authority and refused to recognize Canon Law as absolute/binding. • Protestant Reformation (16th and 17th century); march toward religious tolerance, liberty, disestablishment, constitutional republicanism • Luther’s contribution – (1) territorialized the faith; establishment should be local (2) Two Kingdom Theory – Christians are members of two God ordained, legitimate, good kingdoms; The civil sphere administers law; church administers Gospel. • Anglicans nationalized the faith – model that was basically NOT continued by new world protestants • Anabaptists communalized the faith – emphasis was on the irreconcilable differences between realm of religion/church and realm of the world.

24. Calvin’s reformation congregationalized the faith; church was to be ruled by elected leaders (pastors, elders, deacons) bound to written confessions of faith • Political Implications of PR: Reformers of both generations articulated a political philosophy based upon their reading of Scripture which denied the absolute authority of the state (or people); considered rulers and subjects as equally valuable (same as in church); placed the people and law above the king; generally called for a federal-democratic, divided, political system of limited government to deal with sinful tyranny; called for a constitution which mirrored Biblical covenants where divine law (perhaps 10 commandments) serves as a transcendent ground of civil law (confession in church; covenant in politics); acknowledged right of people to resist and depose a king who violates the terms of covenant; insisted that we do not form government based on self-interest or ideals that we ourselves determine (read p. 13 Witte) Note on church government – the most common forms of church government (decision making structure) among the Reformers was congregational (democratic) or presbyterian (federal-republican). Clearly, many reformers came to believe that their view of how church gov’t should be structured came to influence how civil government should be structured (“Presbytery agreeth with monarchy like God with the devil”)

25. E. Constitutional Covenantalism: The Puritans viewed a covenant as a social and divine promise: each participant in the covenant is expected to do certain things. A violation of the covenant could have the most disastrous consequences for those who had entered therein. Following biblical precedents, a covenant would also last from generation to generation. By means of these covenants, Puritans were among the first English speaking people to implement a government bound by written words in a single document. Example, Deut 1:1-17 Comparing Covenants and Contracts: • Covenants use Broad instead of Narrow language (no loopholes) • Covenants are solemn sacred promises instead of cold legal words on paper • Covenants are social/communitarian in nature instead of individual (We instead of I) • Covenants identify a collective purpose and identity • Covenants are validated or sealed in the presence of and by an external higher authority, typically God *Think about a difference between marriage as a ‘covenant’ vs ‘contract’ and you might get the spirit of the distinction.

26. Reformation Political Thought Political Sovereignty rests with God  people  state Ground of Natural Human value/rights = Imago Deo (originates with God) Justification for Gov’t = ordained by God at least to suppress evil (original sin), promote common good including proliferation of true religion (more communitarian) Constitution = morally-informed pact between people having independent/equal status, constructing a limited gov’t based upon voluntary consent and established by promises made before God. Implications – Reformation political thought led more to federal-republicanism, with divine law and God as supreme; elected reps from each political unit, tribe, church, state (Glorious Revolution, English Civil War). Also Federal Secular Enlightenment Political Thought People  State NHR ground = State of Nature, mutual and unanimous consent, virtue of being human (originates with humans)* Why gov’t? Self-interest, protect natural rights (life, liberty, property); return individuals to natural state of autonomy; more individualistic Constitution is a legal contract among people to form gov’t for sake of self-interest, limited gov’t, and binds all (posterity and immigrants) Implications - Enlightenment thought led more to democracy, with human law and the majority as supreme (French Revolution) *Today’s liberal theorists like Rawls attempt to ground freedom in something other than natural rights/law (too religious) and appeal only to what is rational.

27. Religion and the Constitution in 18th Century America • Introduction - how did America come to accept/enshrine principles of religious liberty, tolerance, disestablishment, church-state separation? A. Why look beyond the Constitution to understand the role of religion in American politics? • Constitution sets outer boundaries (no prescription or proscription of religion by government). • The records of the constitutional congresses’ debates on the first amendment are brief/sketchy. • Limited to Congress, not states (“Congress shall make no law…) • Framers intended for states to interpret these clauses and appropriate them as they saw fit (Madison quote, Witte, p. 21) B. To understand the intended relationship generally, at the time, we must identify the principle players involved in forging the consensus behind church-state relations in the 18th century by looking at four groups: on the religion side, Puritans and Evangelicals; on the political side, Enlightenment thinkers and Classical Republicans.

28. The four groups • American Puritans (dominant from 1630-1730) and the Christian Commonwealth – having been persecuted and/or religious regulation by both Catholic and especially Anglican monarchies, this group took their Calvinism to America (system of Christian theology stressing the utter sovereignty of God in all things as well as the institutional separation of church/state). Key group are Congregationalists. • Church and State are separate distinct ‘covenantal associations’ or two seats of God’s authority. Church was about preaching, sacraments, charity. State was about enforcing law, punishing crime, instilling virtue, and order. Clergy could not hold political office; political leaders could not hold church office. • BUT, though not to be confounded, they were to be “close and compact” (the community is a common project of both church and state, so some interdependence). State provide church with public properties, tax exemptions, subsidies, Sabbath Day laws. Church provided state with meetinghouses/chapels, community schools/libraries, maintenance of census rolls, marriage, death certificates; offered ‘election day sermons’ to promote civil participation. • Emphasis on community and local religious conformity led

29. to banishment of dissidents, like Quakers, Baptists, Catholics, Jews, etc. Puritans were separatists from Anglicanism, but this did not initially seem to require them to accept disestablishment or toleration at the local level. • Things changed, however, in 1689 (Toleration Act) as more and different kinds of Protestants from around Europe sailed over. The Act required toleration, but not full political equality of, other traditional Protestant churches. More and more, the ‘covenantal’ idea of civil society (though not church society) was viewed as more open and voluntarist by Puritans in terms of individual conscience (open to other Christian sects). Came to celebrate, rather than suppress, denominationalism in theology (idea that there are many paths to God withinorthodoxProtestant Christianity) and toleration of religious pluralism in civil society. Read pp. 25-26 Witte. • Evangelicals – Product of the Great Awakening (1720-1780). 1. Great Awakening - a series of evangelists (Wesley, Edwards, Whitefield, Tennet) began to challenge the dry, rigid, religious legalism (‘conversionless Christianity’ where salvation is conferred through ritual or routine) and institutionalization, protection, of the church by the state. Wanted fuller separation, more freedom of association, and liberty of conscience (remember, these were either new or unestablished groups like Baptists, Methodists, and Presbyterians). John Leland, a Baptist fiery preach, said, “The notion of a Christian commonwealth should be exploded forever.”

30. Isaac Backus, Reformed Baptist theologian mid to late 18th century (p. 28) – Christianity should fear BOTH state repression and support of religion. Establishment results in a distraction from divine mandates and capture of established church. Want to promote Christianity? Deregulate it. Besides, the state and church are not working on the same projects (maintaining order vs proclaiming gospel) or using the same means (sword vs means of grace). He coined term separation of church and state. Led evangelicals in pushing for constitutional means of disestablishing religion. • Enlightenment views – provided theory complementing evangelical theology on religious liberty. Locke argued that the state only exists to protect life, liberty and property (man’s ‘outward’ concerns), not to promote religion (man’s ‘inward’ concern). Laws cannot touch one’s mind, which is the object of religious activity. He did, however, argue that state laws would only ‘seldom’ conflict with Christian values and he refused to tolerate atheists altogether (can’t be trusted to keep promises or oaths). Saw disestablishment and religious liberty as solution to violent religious conflict (political instability). Summarized by Madison well (p. 31 Witte).

31. Republican Views – spokespersons were Washington, Adams, Benjamin Rush, etc. If Enlightenment thinkers (like Jefferson) naturally aligned with Evangelicals, Classical Republicans naturally aligned with old Puritans. Agree with both E’s on disestablishment and liberty of conscience, BUT wanted the state/public square feature a common religious ethic (non-sectarian and theologically specific). They stressed the utility of Christianity as a prerequisite to happy citizens, effective/efficient good government (pillar of society and necessary for its peace, prosperity, and endurance). Read p. 33. Their approach was similar to Massachusetts constitution (see p. 34-35) E. Establishment of Civil or Public Religion - Result, the Classical Republicans won out. First, it won out in the first Continental Congresses through official actions/proclamations (chaplains, schools, missionaries, prayers, Northwest Ordinance 1878). Second, won out among states by leaving alone state establishment practices (promoting even particular denominations). Third, it won out in time (we continue to favor or accommodate, in a number of official and unofficial ways, generic monotheism and Christianity in everything from money to White House Christmas.

32. Forging the First Amendment at the Constitutional Convention • The Context of Religion Clauses leading up (1774-1787) • Paid chaplains to lead prayer at Cont Congress entire time. • Thanksgiving day and fast-day proclamations (1775), one of four proclamations “it is the indispensable duty of all men to adore the superintending Providence of the Almighty God.” Also urged all men to “express the grateful feelings of their hearts” by “publick humiliation, fasting, and prayer” and “confess and deplore our many sins” and pray that “it may please God through the Merits of Jesus Christ, mercifully to forgive and blot them out of Remembrance,” that God would grant the “promotion and enlargement of that Kingdom, which consisteth in Righteousness, Peace, Joy, in the Holy Ghost.” • Voted to fund the procurement of 20k Bibles for distribution in the States (never done due to lack of funds; later merely encouraged states to have “one or more new and correct editions of the Old and New Testament to be printed…”

33. Writers of the Articles of Confederation refused to prohibit religious tests for public office holding • Resulting sentiment captured in the Northwest Ordinance AFTER the First Amendment was written. On the one hand, in the territory no one was to be “molested” on account of his religion, but religion was to be promoted in the territory by the government. • Drafting Process • House version: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” Elsewhere, a sixth amendment would say, “No person religiously scrupulous shall be compelled to bear arms in person. • Senate version (three early versions defeated read p. 87-88). Senate version (#19 p. 88): Congress shall make no law establishing articles of faith or mode of worship, or prohibiting the free exercise thereof.” • A conference committee (HR and S) composed of a cross-section of our four groups gave us our current/final version with no surviving debate details.

34. How are we to make sense of their unclear intentions? Two possibilities: • Thinner reading – clauses set outer boundaries of appropriate congressional actions on religion (neither prescribe nor proscribe). Leaves open later discussion and perhaps legislation on religion. Based on fact that earlier drafts had more sweeping language and were rejected (Congress shall not ‘touch’ or ‘favor’ or ‘prefer’ religion). Instead, they adopted ‘respecting’ (point to) establishing religion. • Thicker readings – (more reading in to the words) 1. Congress – not binding on the states 2. Shall make no law – no new laws, but confirming existing ones? Probably not, since new laws easily passed that did in fact touch on religion. 3. Respecting an establishment – could refer to C not touching a state established religion (6 had them then); or could mean C cannot pass laws aimed at promoting an established religion (respecting is an umbrella term touching on doctrines; required worship, mandatory tithing, etc.); so on the first view, concern is not interfering with states; on the second, the concern would have been not to allow Congress to move in the direction of a national established church (with all attendant laws). The first reading gives Congress no guidance on national laws affecting religion; the second gives them guidance, but does not allow much beyond what was already commonplace (chaplains, religious education, etc.). Conclusion?

35. Non-preferentialism – a mixture of these views suggesting that all the founders intended (or could agree upon) was to outlaw an established national religion, but allows for support of religion in general. Put positively, C can “touch” religion so long as it favors no particular one. This view explains the various laws touching on religion (chaplains, etc.). This view has a harder time explaining the word “respecting” however. • Prohibiting Free Exercise – umbrella term referring to all that is meant by free exercise; this reading would mean that it merely prevents C from prohibiting free exercise of religion (they dropped the liberty of conscience clause) • Religion – IMPORTANT DEFINITION; to get free exercise, it must be religious; to constitute establishment it must be a religion (or religious); what is the pale of recognized religion? Then it did not go beyond monotheism (Jews, Islam, Deism, Christianity, etc.). What about conscientious objectors? In the end, we get a new experiment, despite the lack of clarity, when it comes to church state relations. Read Madison p. 100-101.

36. Religion Clause Interpretation prior to 1947 • Introduction – very few national laws touching on religion (or challenging existing laws doing so). Religion laws were left to states (and the development of new state constitutions). • State Constitutional treatments of free ex & establishment • Free Exercise - State constitutions articulated and stipulated very detailed religious liberty and conscience laws (far beyond first amendment language), recognized reality of and equality between religious groups (explosion after 2nd Great Awakening); they moved towards greater separation between church and state (two states banned clergy from political office until 1978 and several states adopted “Blaine” amendments which prohibited tax dollars from being spent on any church or sectarian institution or activity). *Motivation behind Blaine amendments and support for compulsory & expanded public education came especially from two sources: Secularists, who wanted to de-Christianized society & anti-Catholic Protestants (latter group wanted protect the dominant Protestant ethos (mode of thought) which permeated American society from Catholic immigration. B. Disestablishment – only 7 of 12 had disestablishment statements, but the reality of religious pluralism and the strong free exercise language probably made it unnecessary for the other five.

37. *Yet, most of the constitutions grounded or justified their protections of religious liberty in their understanding of what ‘Almighty God’ would have us do to fellow persons. • Law in action vs Law on the books; Frontier as the release valve (1787-1947) • Challenge and legacy of the Founders: state sought to balance the general freedom of all private religions with the general patronage of one common public religion (Protestant Christianity) with dissenters moving (or moving West) for greater freedom. In short, promote both pluralism & civil religion. • A measure of discrimination still occurred (NE against Quakers, Baptists, Methodists; NY, NJ, PA against Unitarians, Adventists, Christian Science; South against Catholics; and all against Jews, Native American religion, and Islam). • Civil religion continued – symbols (crucifixes, In God We Trust, etc.), Ten Commandments, national prayers, ‘blue-laws’ (Sunday observance, blasphemy, etc.), official holidays were Christian, property grants/subsidies for poor Christian churches/charities/schools; mandatory chapel and Bible teaching in public schools; laws banning polygamy, prostitution, pornography, gambling, often banned as offenses to Christian morality. Legal defense? Christianity is a part of the common law tradition (bedrock or foundation of law).

38. Getting out of town or state – religious minorities in an area just moved around until they were more comfortable (Mormons moved from NY to Ohio to MO to IL to Utah then ‘colonized’ NV and ID). Free spirits moved to Mountain West and Oregon or Washington. • Religious diversity reached all time high at the turn of the century (1900). Why? • 2nd Great Awakening (1820-1860) – complete abandonment of tradition, creeds, and confessions; stressed new experiential thing in Christian (common message was ‘Restoration’). • ‘Reconquest’ of eastern seaboard by Baptists, Methodists, and Catholics • Civil War – intradenominational divisions = new den • Civil War amendments freed not only slaves but latent African-American churches • Immigration – European (especially Catholics) and some Eastern (Buddhist, Hinduism, etc.). • Key Result – MAJOR change in religious landscape (Table 5.1). From Anglican and Reformed/Calvinist to Evangelical. Irony? Evangelicals far more interested in separation of c/s but far more interested in an implicit endorsement by state/society of basic Protestant Christian values.

39. Rise of the Secularists (1870-1920) – originally allies with Evangelicals on establishment and liberty of conscience. But now moved to take over knowledge production centers of society (education, law, science) by extricating elite institutions of society and the Protestant cultural hegemony, of any thing like a public or relevant Christian worldview. • Aim to change what the US Supreme Court said was true of America (if one takes “a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth…that this is a Christian nation.” Unanimous opinion, 1892). • Education, always first. A new “progressivist” (i.e., naturalistic) vision of knowledge came to dominate higher ed, so that Christian higher ed (nearly all colleges at the time) began relegating religion to chapel service and graduation ceremonies (Is Danforth chapel necessary?). • Science and religion recast into “warfare” models rather than “complimentary” models. • Legal realism replaced natural law as basis of law (no immutable truths, but evolving subjective basis).

40. Pop culture – basic Christian ethic in mass public ed derooted; collective understanding of the human person changed from divinely created focused on morality and character to modern psychological constructions of the self centering on personality, instinct, and desire; leading cultural leaders, speakers, moralizers were Protestants before bur now replaced by new cultural authorities in journalism and social sciences • Supreme Court (Polygamy, the Mormons, a case in point) • Prior to 1940, SC reviewed a few state laws on religion, but not under First Amendment scrutiny (said Congress, not States). Only used principles of law and fairness (17 cases during this time). • But this changed in 1862, when Congress made Polygamy a federal crime and in 1882, laws were passed barring polygamists and plural cohabiters from voting, holding office, and serving on juries. In 1887, sought to dismantle the Mormon Church altogether (siezing its property) since it was seen as a haven for illegal polygamists.

41. Mormonism • Cases - Reynolds v. United States (1879), Davis v. Beason (1890), and CJCLDS vs U.S. (1890) – all featured Mormons challenging these laws (law against bigamy, mandatory anti-polygamy oath, gov’t dissolving the Mormon church’s charter). • Rulings – SC upheld Congressional law in each instance, not even entertaining Mormon free exercise claims (protects beliefs, not actions, they said). • Context of national fear of Mormons? Smith’s frequent political language/gestures (ran for president, formed militias, spoke of building a kingdom headed by Mormons in America; polygamy and birth rates, mystery in Utah); though not through violent rebellion. • Court’s reaction (p. 128 Bradley). • Issue resloved when Utah sought statehood and the LDS church disavowed polygamy is right in this age. • Consequence: Court reduced free exercise to a minimalist guarantee of liberty of conscience ALONE (mere opinions can’t be touched).

42. Modern Free Exercise Law • Introduction • New Era (erosion of federalism in religious liberty law) where religious liberty is influenced more by US SC rather than states. First 150 years, 31 religious liberty cases NONE using the first amendment. Last 70 years, 130 religious liberty cases, MOST using first amendment. Why? • Incorporation – apply many of the Bill of Rights to states. • Consequences – states have not stopped legislating on religion, but must keep one eye on constitutional law. Problem is, 70 years of religious liberty law has been fraught with inconsistencies. • Mapping Modern Free Exercise Doctrine • Key points of conflict - Cases feature conflicts between private religious practice/belief and governmental power/action. Claimants argue that some law “prohibits” their free exercise of religion by burdening (inhibiting acts of worship; commanding them to do something that conflicts with their doctrines/practices; discriminates by burdening their religious activities but not those of others). • Easy cases – Jehovah Witnesses forced to swear an oath or Jews forced to remove a yarmulke.

43. Hard cases – unemployment insurance is denied to an applicant because he refuses to work on Saturday for religious reasons; a secular humanist refuses to serve in the military; a religious university refuses to accept blacks because it thinks the Bible requires separation of races; a business requires devotion attendance for all employees. *One rather consistent doctrine is that free exercise claims must be “sincere” rather than contrived (this means religious probing). Again, court has to explore and define what is religious (naturalist faith and a farmland shrine? Personal religious convictions. Etc.) • Free Exercise Case law A. Scrutiny level – if “low-level” (rational basis), then law is upheld if it is reasonably related to a legitimate government interest; if “high-level” (strict scrutiny), the law is upheld only if gov’t interest is compelling and if it is narrowly tailored to achieve that interest (last resort and least offensive). So, what level of scrutiny did court use in Reynolds (the Mormon cases)? • Scherbert and Smith – since Reynolds, court moved in a heightened scrutiny direction.

44. Scherbert vs. Verner (1963) – Scherbert gave us the strict scrutiny test in FE cases (compelling interest and narrowly tailored). This favored religious minorities. • Employment Division v. Smith (1990) – Court rejected strict scrutiny and adopted a low-level test. A law is valid so long as it is facially neutral and generally applicable. If not, strict scrutiny test. • Evaluation of Smith - The ‘Smith test” was used to overturn a local anti-Santeria law in FL, but critics remain. They see the test is a return to Reynolds (strict scrutiny) and hurting religious minorities (if generally applicable, tough). Congress reacted to Smith with the Religious Freedom Restoration Act (1993), but the SC ruled that the Act was unconstitutional when applied to the states. So, we are left with Smith test for state law (low-level) and RFRA in federal law. 4. Court reluctant to apply Smith because it seemed to disfavor minorities, but Smith is still the most frequently used test for Free Exercise featuring state law challenges. From mid-1990s to Locke vs Davey (2004), court even signaled that it might consider “unequal access” to government funds as a violation of free exercise, but Locke presents serious setback to that trend.

45. Modern Establishment Clause • Introduction • Nature of conflict – government has taken an action “respecting an establishment of religion” (e.g., coercing participation in religious activity; improper public use of religious places or things; allied with religious causes or groups; discriminates in favor of one religious interest over others). • No other body of Const. Law is more ambiguous or difficult to follow • Standards vary broadly under three headings 1. Separationism – government may take no actions that aid religion, either directly or perhaps even indirectly 2. Accommodationism – government may show or provide non-preferential support for religion 3. Differing views of ‘Neutrality’ (gray area)

46. Strict Separation – Justice Hugo Black articulated this doctrine in the 1947 Everson v. Board of Education of Ewing Township decision. Used Jefferson’s metaphor from his letter to the Dansbury Baptists as the lens through we interpret the establishment clause. Years later, the court constructed an allegedly clearer and more relaxed test for deciding establishment clause cases. Neutrality means secular according to this view. Black’s language: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.

47. Lemon test – A law is constitutional (not guilty of establishment) if: • It has a ‘secular purpose’ • It’s ‘primary effect’ neither ‘advances nor inhibits religion’ • Does not ‘foster an excessive entanglement with religion’ B. Lemon’s criticisms – • Why a secular purpose and what is a secular purpose? Justice Potter, we may be moving toward “an establishment of the religion of secularism.” Does Lemon exempt newer philosophies like liberalism/secularism? Does this empty traditional public religious promotions like civil religion of all substance (Nebraska chaplain does not aid religion)? In 1961 (McGowan v. State of MD), Justice Earl Warren UPHELD Sunday closing laws. But, he did so using Lemon finding no violation of the first prong. “Secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come…” MD’s law “merely happens to coincide or harmonize with the tents of some or all religions.”

48. Can excessive entanglement be avoided? If government must be sure to avoid advancing religion, then won’t it be progressively entangled with it? Is this feasible in the age of the modern state (if gov’t gets in, religion get out; but gov’t gets in everywhere today) • Result – often ignored, partially applied, inconsistently interpreted, heavy criticism from all sides on the court (Paul Marshall quote p. 129 of his book). Most on the SC today have largely, though not explicitly, abandoned the test (favoring either the old strict separation principle, or accommodation, or equal treatment/positive neutrality principle). II. Accommodation - like Strict Separation, this groups recognizes a real philosophical difference in religion and secularism, but insists that the only intention behind the establishment clause is to prevent the establishment of a particular church/denomination/religion. Beyond that, governments are free to promote/support religion non-preferentially. Clearest articulation in Rehnquist’s critique of Black and Stewart’s dissent in Engel v. Vitale (“I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation…Since the days of John Marshall, our Crier [of the SC] has said, ‘God save the U.S. and this Honorable Court’…It was all summed up by this Court just ten years ago in a single sentence, ‘We are a religious people whose institutions presuppose a Supreme Being.’”

49. Rehnquist dissent in Wallace (handout) • Equal Treatment or ‘Positive Neutrality’ (government must be evenhanded between religion and irreligion). • Based on philosophy in part and supported by a series of SC decisions (especially Rosenberger). • Philosophy – religion is utterly pervasive in all human endeavors but takes many forms (some include a god, gods, no god). Religion is functionally synonymous with the concept of ‘worldview’. In an atmosphere of proliferating religious pluralism (progressively since founding), government neutrality requires that it be evenhanded between worldview adherents. This respects everyone’s free exercise of religion in the public space. Example of Univ. of Alabama physiology prof. As James Reichley put it, “Banishment of religion does not represent neutrality between religion and secularism; conduct of public institutions without any acknowledgement of religion IS secularism.” This is increasingly relevant in an age where government activity and religious activity increasingly overlap. Tend to argue that the intention of the founders is that government be neutral (evanhanded) between real worldviews operating in society (at first, only Christian denominations, but then different religions, and today religious and secular worldviews).

50. 2. Series of cases from early 90s to 2000: equal access to school and university facilities, required a school to rent facilities to a church to show religious film, required a state to fund the religious education of a blind student, overturned previous decision now allowing public school teachers to provide remedial instruction in religiously based schools. • Public policy support (Charitable Choice Act 1996) – federal government may not exclude faith-based charities from contracting with government to provide social services if it opens itself up to bids from other private sector (secular) charities. • Rosenberger vs Univ of Virginia (1995) – Kennedy “We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” Basically, UVA could choose to fund none, or all, but if it chose to fund secular organizations it must also fund religious ones. Souter’s dissent – “The Court today, for the first time, approves direct funding of core religious activities by an arm of the State….The Univ exercises the power of the State to compel a student to pay [for] it, and the use of any part of it for the direct support of religious activity thus strikes at what we have repeatedly held to be at the heart of the prohibition on establishment.”