Introduction
Religions are part of every society’s makeup and even in the most atheistic of societies, one can find more than one religion. The conflict between state and religion, therefore, is always present and states have to come up with a religious policy to deal with this conflict in a consistent way. Given the power religion has over its adherents, it may not be a surprise that most countries regulate religion. Some countries have state religions, while others are hostile toward all religions and can be termed as anti-religious. The US has long been considered an outlier in the developed world in terms of religious attendance. However, not many people know that the US is also an outlier in terms of church-state relationship (Mewes 2002).
Fox (2008) did a survey of 175 states of the world and concluded that most of the states are not neutral toward religions and are involved in religion regulation. Almost one in four states had official religions and another two-fifths of the countries supported some religions more than others. Around 8% were hostile to all religions and only 3 (less than 2%) supported all religions equally. The US was one of the three states which supported all religions equally. Another measure, more strict than government involvement in religion, was SRAS (Separation of State and Religion). US was only country of the world which neither restricted/regulated the practicing of minority or majority religions, nor passed any religious legislation, proving that the church-state relationship in the US is unique in the world.
The traditional US principle of separation of church and state is based on the First Amendment of the US Constitution and prohibition of the requirements of religious tests for qualification of any office/ trust.
Wall of Separation between Chruch and State
Source: Illinois Family Institute (https://illinoisfamily.org/religious/obama-bulldozes-jeffersons-wall-of-separation/)
There are two religious clauses of the First Amendment. The Establishment Clause states, ‘Congress shall make no law respecting an establishment of religion’. The Free Exercise Clause states, ‘or prohibiting the free exercise thereof’.
The article 6 of the US Constitution dealt with the requirement of religious tests
‘… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’.
These two clauses and article 6 have been interpreted differently by judges in different eras. Judges have agreed on the minimum application of the Establishment Clause, which is that there would be no established or endorsed church. Beyond this, however, there is no agreement. Similarly, there is controversy about how Free Exercise Clause should be interpreted (Long 2012).
The US in the Eighteenth Century
To fully understand these injunctions of the US Constitution, one has to study the circumstances in which the Framers of the constitution were operating in late eighteenth century. The following discussion will demonstrate that there was a conflict between an elite, which believed in religious freedom, and masses which did not. In the US Constitution, the elite managed to have their way and religious freedom was guaranteed, without any provisos. However, except for clear restrictions on religious tests in oaths, there was nothing specific about religious freedom in the Constitution which allowed the lower level governments to move towards church-state separation enshrined in the Constitution at their own pace. The necessity for immediate change was further downgraded by the actions of the Supreme Court which did not feel the need to enforce the Bill of Rights.
Religious diversity
Many of the earliest Europeans who immigrated to the US were religious dissenters. Pilgrims, Puritans, Quakers, Huguenots and many other came to the US after being persecuted in their own countries. Facing persecution in their own countries, unfortunately, didn’t make them accept the importance of religious liberty and many of these groups (e.g. Puritans) tried to persecute others for not following what they believed.
These efforts, however, gradually lost their force as colonial America became more and more diverse. This diversity in religious practice was not only the result of immigration from different corners of Europe but also changes/divisions in many denominations/sects as grew in the US (Holmes 2006). Another important element in religious diversity of the colonial America was the dominance of different denominations in different colonies. Despite being part of British Empire, major sections of populations in many colonies didn’t follow the Anglican Church.
Even for someone, who didn’t believe in religious liberty, it was obvious that choosing one religion/sect and making others accept it without fear and fight was impossible (Wright 2010).
Founding Fathers, Sons of the Enlightenment
European Enlightenment philosophy had enormous influence on the making of the US Constitution. Many of the most important members of the Constitutional Convention and other important personalities of American Revolution were inspired by the Enlightenment thinkers like John Locke, Rousseau, Voltaire, and Montesquieu etc. The ideas of limited government, natural rights, separation of powers and religious liberty were all ideas first popularized by the Enlightenment philosophers. Locke and Montesquieu's writings have been regarded as having the most influence on the US Constitution. Persecution because of one’s religious or other beliefs was an idea close to the Enlightenment thinkers like Voltaire, who himself suffered, and this idea influenced Jefferson, Washington, Madison, and others.
There is an ongoing controversy on what the Framers truly wanted. Did they want high or low wall of separation? This question assumes that all the Framers thought alike which is implausible. Munoz (2009) has shown though none of the three main founders accepted the strict separation of church and state, Jefferson, Washington, and Madison had each a different view about the relationship between church and state. According to Munoz, ‘There is no single church-state position that can claim the exclusive authority of America’s founding history and that no one Founder’s position can be assumed to reflect the original meanings of the religion clauses’.
Ironically, Thomas Jefferson, who coined the term "wall of separation," allowed the use of federal funds to build churches and to support Christian missionary work.
Religious intolerance
Though circumstances in the colonial America at the time of independence were better than the past and also better than many European countries, it was still a religiously intolerant society. Therefore, it would not be correct to think of religious liberty as a popular concept outside the elite that Founding Father belonged to. Anti-Catholicism was prevalent in newly independent America and there were a large number of laws which restricted the ability of Catholics, Jews, and atheists Americans to live as normal citizens (Davis 2010).
State Rights
Finally, State Rights was another idea which favored religious liberty, although, at the time of the making of the US Constitution, it didn’t stop states from persecuting or prescribing atheists etc. Due to the diversity of the state’s views on religious liberty and inclination of the Framers to leave most of the powers to the state governments, the original constitution didn’t have much on religious freedom except Article 6 and even after First Amendment was added, it was not enforced for almost a century.
Church-State Relationship in Practice
Though the US Constitution didn’t see many changes in terms of its provisions relating to the church-state relationship, the way constitution was applied changed immensely during the two hundred and fifty years of US history. One important thing to be kept in mind is the federal nature of the US government where most of the action happens at the local and state level and the federal government has few tools to affect anything happening at lower levels. Changing church-state relationship at the lower levels was particularly difficult as, on this issue, there was neither agreement in the Congress and nor an appetite to touch this sensitive subject among the legislators. Only Supreme Court had the powers to build the wall of separation that it later did. So, for studying the church-state relationship, rulings of the Court are very important (Jelen 2010).
Looking at the important US Supreme Court decisions relating to religion, one is surprised to see that the first important decision relating to religion was delivered in 1879. Compare it with the 1960s, when seven landmark cases relating to religion were decided by the US Supreme Court. The difference is not because of any constitutional change but because of the changing nature of the American society and the Supreme Court.
Three periods can be distinguished in the US history in terms of church-state relations.
1776-1868
During this period, the federal government and courts generally maintained separation between church and state in their own sphere of influence. However, federal officers and judges did not apply the separation at the state level. They considered it a prerogative of the states to decide their relationship with the churches. Therefore, while many states applied the First Amendment whole heartedly, others didn’t and there were no consequences. Maryland raised taxes to support ministers, Massachusetts legislature approved the idea of multiple establishments, and Pennsylvanian officials had to take an oath, declaring their belief in God. Some form of religious establishment continued in many states long after the start of the 19th century (Wright 2010).
It is true that at federal government level, separation of church and state was reiterated in treaty with Tripoli and in the delivery of post on Sundays but federal government influence was minimal in the first half of 19th century and what mattered to people were policies at state and local level where state-religion separation was most often not present. The Supreme Court, the one branch which could have done something about it, was more concerned about state right, rather than individual rights. Justice Marshall opined in Barron v. Baltimore (1933) that the Bill of Rights should not be used for limiting state powers. (Wright 2010)
1869-1939
After the Civil War, 14th Amendment in the US Constitution was passed which among other things made the Bill of Rights applicable to the states of the Union.
The relevant section of the 14th Amendment of the US Constitution states, ‘..nor shall any State deprive any person of life, liberty, or property, without due process of law..’
It was only after the passage of 14th Amendment that Supreme Court started applying the Bill of Rights to the states as part of the due process required. This process of ‘incorporation’ of Bill of Rights was, however, a slow process as the Supreme Court was still very sensitive to the local laws. So while Supreme Court gave some decisions applying the Bill of Rights, none of them were related to Establishment Clause or Free Exercise Clause. In fact, the only decision related to religion that Supreme Court gave during this period was related to a federal law. Supreme Court decided in Reynolds v. United States (1879) that Free Exercise Clause allowed universal freedom of belief but not freedom of action which is restricted.
1940 onwards
During the 1940s, what has been called ‘the New Deal era’, the Supreme Court broadened its interpretation of the federal government powers. This not only helped the New Deal laws but also had implications for the wall of separation between church and state as both Establishment Clause and the Free Exercise Clause were interpreted more broadly. Justice Hugo Black, an associate Supreme Court judge, was instrumental in bringing this change. The following figure shows the difference between how "wall" was interpreted in the eighteenth century and in the mid-twentieth century.
The two walls of separation
Source: The Gospel Coalition (https://blogs.thegospelcoalition.org/justintaylor/2015/07/16/the-urban-legend-that-thomas-jefferson-believed-in-a-wall-separating-church-and-state/)
The church-state relationship during this era is discussed more broadly in the following section.
US Government v. Religious Freedom
The need of religious freedom and state often do not conflict. The regular conflict between state and religious freedom is characteristic of only those states which have a state religion and give preference to their state religion over other religions or over atheism or agnosticism. These states usually have laws which make religious conversion difficult (unless it is to the state religion) and put additional liabilities on religious minorities. These states thus restrict an individual’s freedom of belief.
Most of the developed states, like the US, usually do not restrict individual’s freedom of belief and practice. Therefore, state, instead of restricting religious freedom in these countries, protects and promotes religious freedom. The conflicts that arise between religious freedom and such developed states are due to three reasons. First, a state has a responsibility to protect its citizens, especially those who are not in a position to protect themselves. If widely accepted obligation of the state comes into conflict with religious freedom, then religious freedom has to be restricted. Second, a state has to decide when fundamental freedoms of two persons are in conflict. While the fundamentals of the religious freedom are agreed upon, the outer reaches of the religious freedom are hotly contested. Finally, a state may force on its citizen some restrictions, which it considers absolutely necessary for social good. These restrictions are usually very few.
US experience
Religious freedom in the US was restricted in the 18th and 19th centuries. As discussed above, state restricted the freedom of religious minorities in public sphere. Many states had some form of established religion till late in the 19th century. It was only in the 1830s that Jews were allowed to be elected and vote (Maryland State Archives 2013). Add to it the long history of burning of black churches and restrictions on African-American population of the US, which the Southern states governments, explicitly or implicitly, supported even well into the twentieth century (Brooks 1922, SimmsParis 1998). The issue was, of course, racial hatred but it did make it difficult for African-Americans to participate in their religious practices without fear. So, historically, the US has not done well in terms of protecting the religious freedom of certain sections of its society and despite the apparent legal religious freedom, Christian/Protestant ideas have circumscribed what ‘others’ can do (Sehat 2010). The reason for restriction on religious freedom was, however, not needs of the government but social prejudice.
It is only after the Second World War that major restrictions on religious freedom were based on the need of government. The US government and Supreme Court had to violate one in favor of other in a balancing act. Major areas of disagreement are explained below
Public Schools
A large number of Supreme Court cases relate to public schools where community and individual rights come into conflict on a daily basis. In a large number of cases, Supreme Court has made it clear that any type of religious prayer, instruction and speech goes against religious freedom. Even normal actions, such as giving gifts to one’s class fellows, were denied based on their link with a particular religion.
Vaccination
The issue of exemption from vaccination based on religious belief is a difficult one. On one side is the religious freedom of a group of people which feel violated and sinned against. On the other side are millions of others which have protected themselves by being vaccinated based on the current medical scholarship but are still vulnerable because of the group which has decided to opt out of this program. In two cases Jacobson v. Massachusetts (1905) and Zucht v. King (1922), Supreme Court decided that the protection of the community is more important than religious freedom of a group (Novak 2005).
Harm to Children
There are many cases in which state restricted the freedom of religion of parents to protect their children from harm. The case of Rebecca Corneau, who was jailed for not revealing the location of her infant baby after one of her previous baby was found starved to death, resulted in a large controversy as it pitted the strange alliance of feminists and religious rights against the state (Wald 2003, Nicilosi 2000).
Religious Freedom v. other freedoms
A number of cases involving Jehovah Witnesses’ proselytizing practices brought in conflict religious freedom and other freedoms e.g. right of individual privacy or social peace. Although most of these cases were decided on the basis of Free Speech Clause, it brought to a sharp picture the fact that religious practices of some can cause difficulties for many. Another type of cases was related to the workplace. It is hard to unpack Supreme Court decisions and decide whether the court favored religious freedom of an individual or gave preference to ordinary laws/practice.
Conclusion
The US state has done well in sufficiently accommodating practices of religious minorities. The branch which has most contributed to this atmosphere of religious freedom is the judicial branch. Since the 1940s, Supreme Court and other courts have forced other organs of state to not only stop actions which restrict the rights of a particular religion but also forbidden most religious actions in the public sphere. Critics can point to few decisions which went the opposite way but nobody can deny that the trend is toward more religious freedom. Two recent developments, however, put the future of these gains in doubt. First, 9/11 has started a debate among Americans about whether they have to choose between security and freedom. Many commentators and organizations declare it a false choice but it is difficult to deny that religious practices and freedoms of religious minorities (especially Muslims) are now in sharp focus. The controversy about the building of a mosque near 9/11 site shows emotions can easily be whipped up. Second, the conservative bent of the current Supreme Court (which has been called the most conservative since the 1930s) has shown that if there is a permanent conservative majority in the Supreme Court then many of the liberal gains of the last century could be declared unnecessary or unconstitutional (Chemerinsky 2010).
