Democracy and Religion

Free Exercise and Diverse Visions

David Odell-Scott

• Publisher: The Kent State University Press
• Year: 2013
• ISBN:
  9781612773926
• Topic: Política y relaciones internacionales
• Subtopic: Democracia

Compiled from papers delivered at the third annual Kent State University Symposium on Democracy held in spring 2002, Democracy and Religion: Free Exercise and Diverse Visions explores the interrelations of politics and religion. The work is divided into four main sections: the constitutional debate regarding the establishment and free exercise of religion clause, the themes of violence and nonviolence as they relate to religion, the free exercise of religion and the rise of fundamentalism, and the challenges to the free exercise of diverse religious practices in a democratic society.

Each of the main categories is subsequently broken down and examined in-depth by an expert in the field. Discussions include an explanation of the complexities of religion and state in the United States, encompassing separation, integration, and accommodation, as well as past and present religious literacy and civil liberties, and an examination of violence and nonviolence, extremism and moderation, in Islam.

This compilation of essays will fascinate those with an interest in the complex relationship between religion and politics.

Section I

The Constitutional Debate regarding the Establishment and Free Exercise Clause

Exercise Clauses

Introduction and Discussion

CATHARINE COOKSON

The three papers presented in this section at first blush seem quite divergent: the movement relocating minority groups’ efforts to achieve religious freedom to state court venues, school vouchers in Cleveland, and three paradigms of the complex relationship between religion and state. Yet the theories, principles, and controversies discussed in all of these papers can be seen as predicated upon the basic, primary political quest for a just and civil order. Law is the foundation of civil order. The state’s primary task is to maintain that order,¹ and clashing conceptions of what is necessary for a just order lie at the heart of the diverse visions of religious freedom.²

THE RISE OF STATE LAW SANCTUARY FOR MINORITY RELIGIOUS LIBERTY (GARY S. GILDIN)

Gary Gildin is right: Pure democracy is an inhospitable environment for religious freedom. Constitutional protection for this right has been lost in the fog engendered by the “law and order” hyperbole of the 1990 case of Employment Division v. Smith.³ Instead of viewing free exercise claims as a conflict of principles (the good of the regulatory goal versus the good of religious freedom), the courts now defer to the democratic majority–made law and deem the religious adherent as a criminal seeking to “get away with” deliberate law breaking. Intent to fulfill a religious obligation is equated with intent to commit a crime; religious intent thereby becomes criminal intent.

The courts also emphasize the injustice of unequal treatment: one lawbreaker goes to jail, whereas the religious adherent who breaks the same law goes free. The courts fear anarchy and are wary of those who consider their obligations to God as paramount. As we shall see, such fear of danger to the common good has won out only in the free exercise part of the constitutional equation, with minority religious claimants seen as dangers to the community. Interestingly, the claim for equal treatment is used against free exercise claims, but in support of the erosion of the wall of separation of church and state in establishment clause claims (which tend to favor dominant religious groups).

Fear of free exercise anarchy is misplaced, however: no serious political philosopher or advocate of the right to religious freedom has ever held this freedom to be absolute. There are generally accepted limits; no one can harm the person, property, or common rights of citizenship of another person in the name of their own religious freedom.⁴ To show that their free exercise claims will not harm the public good, religious adherents routinely have offered evidence that the harm anticipated by the law either is not present or is not as threatening in their particular case. The state, in turn, is supposed to offer evidence of its compelling interest in overriding the religious obligation. But, lately, the courts haven’t felt at all comfortable with this contextual approach. The result has been the demise of the compelling state interest test.

Thus laws and regulations now routinely trump the individual’s right to the free exercise of religion. The one narrow exception: if lawmakers intended to discriminate against a religious group and uniquely targeted that group. If the law applies generally, then it passes constitutional muster. Here is an example: if there wasn’t a sacramental wine exception written into the laws governing alcohol consumption, children under the drinking age of twenty-one could not receive wine as part of communion in the Catholic or Episcopal churches.

Gildin may be letting the government off the hook too easily when he characterizes the crackdown on minority religious groups such as the Amish and the Hmong as unintentional, ignorant, or inadvertent. Not every breach of a regulation results in administrative enforcement and penalties or criminal prosecution, due to the exercise of prosecutorial and administrative discretion. Prosecutors and administrators, agents of the government, are on the scene and do know exactly what they are doing when they use their discretion in a way that harms religious adherents in the name of uniformity.

Gildin examines the only practical resort left to those who are barred by law from adhering to their religious obligations: state courts. The state, he notes, is free to expand protection of individual rights beyond the limits of the federal constitution. Even when the “compelling state interest” test is restored, however, it presents a precarious balancing act that is all too easy to undermine. A state’s use of its police powers to protect the health, safety, and welfare of the public can dwarf what seems to be a small and idiosyncratic interest of the religious adherent.

SCHOOL VOUCHERS AND THE ESTABLISHMENT CLAUSE (JOHN E. FERGUSON JR.)

As discussed in the previous section, in the latest judicial interpretation of the free exercise clause, the bottom line is that civil order requires rigid obedience, and statutes and regulations thus generally trump any claims to religious freedom. Interestingly, notions of the common good, order, equal treatment, and individual religious freedom rights are also key in the movement to dismantle previous establishment clause barriers between church and state.

In looking at the current war over the meaning of the establishment clause, I’ll begin again with the question “What is necessary for good order?” One answer favors a narrow, limited establishment clause that does not prevent the government from funding essentially religious institutions when legislatures think it is in the common good and the interests of civil order to do so. Another answer denies the very existence of governmental power either to fund/support or to oppress religion. This debate over government power is as old (if not older) than Patrick Henry and James Madison.

On the one hand, dissenters (Baptists such as Roger Williams, John Leland, and Isaac Backus) and other Christians, such as James Madison, championed a two-kingdom, separation of church and state, approach.⁵ The core principle is that government has no power to act on matters of religion—actions and laws that prohibit as well as support religion are null and void, void ab initio. Freedom of religious conscience is retained as an inalienable right—meaning that the state does not and cannot possess the power to support or inhibit religion, even if the majority of the people want the government to have this power.⁶ Because the state lacks authority in matters of religion, it has created serious civil disorder by using public tax monies to support religious ministries.

On the other hand, Patrick Henry and others reasoned that because religion was necessary to make citizens virtuous, religion was thus necessary to civil order, and, therefore, government support of religion was vital to civil order. To fill what he perceived to be a dangerous void left when Virginia disestablished the Anglican Church, Henry introduced a bill to provide for teachers (ministers) of the Christian religion. The bill was what we would today describe as “nonpreferentialist” in that it did not prefer one religion to another (albeit the religions in question were all various Christian denominations). In fact, under this bill no one’s tax monies went to support the religious institution of another: the bill exacted a tax that went only to the church of one’s choice. Henry premised the bill in terms of religion’s usefulness to government. He argued the need for religious authority to guide citizens’ consciences and raised fear of the anarchy of an immoral, unvirtuous citizenry.⁷

Madison and a groundswell of Christian dissenters wrote petitions opposing this bill, arguing that governments had no authority or jurisdiction over religion and that state support of religion was corrupting and useless.⁸ Henry lost this round, and Madison, seizing the moment, quickly introduced a bill Jefferson had written back in 1777. The Virginia Congress considered this bill in October 1785, and it became the Statute of Virginia for Religious Freedom. Part of the statute reads, “No man shall be compelled to … support any religious worship, place, or ministry.”⁹

But this was hardly the end of the Madison-Henry debate. Three years later, at the Virginia Ratifying Convention, the Henry tradition took the lead in the Virginia debate. Willing to compromise to get Virginia’s vote for ratification, the Madisonian side acquiesced to Henry’s insistence that Virginia submit a proposed amendment to the United States Constitution. Henry’s proposed amendment regarding religious freedom was a rewriting of the 1776 Virginia Declaration of Rights, leaving out “Christian charity and forbearance” in favor of a nonpreferential establishment of religion. This language did not make it into the final Bill of Rights, however.¹⁰

The lead in this debate continued to be contested as the eighteenth century drew to a close. Dissenters and others of the Madisonian tradition were dying out just as the Second Great Awakening began to reap a harvest of souls for evangelical churches that had benefited from the new free marketplace of religion. As Evangelical Protestantism gained cultural dominance in the nineteenth century,¹¹ the Henry tradition became the dominant partner in the debate. The United States became caught up in its “Christian Manifest Destiny.” In a treatise on the U.S. Constitution written in the nineteenth century, Justice Joseph Story wrote, “It is the especial duty of government to foster and encourage [Christianity] among all the citizens.”¹² Public schools, as Attorney Ferguson notes, became sacred places. Although left a weakened debating partner, the Madisonian tradition nonetheless did not leave the debate floor. For example, the House Committee on the Judiciary in 1874 rejected a petition to amend the Constitution to include an “acknowledgment of God and the Christian religion,” reasoning that the Founders envisioned the United States as a haven for all, Christian or pagan.¹³

I want to highlight the fact that we’ve had these two different traditions of establishment clause interpretation with us since the Founding. One would separate church and state, maintaining that government has no authority over religious matters and warning that the power to support religion and the power to suppress religion are one and the same. The other tradition maintains that there is only a minimal separation of church and state and that government has always been free to support religion ...