Is there a separation of church and state in Islam?

Millions of people, both Muslims and non-Muslims, even scores of academics, believe that in Islam, there is no separation of church and state. They point out to Prophet Muhammad (PBUH) being a prophet as well as the head of the state. The period of the first four righteous caliphs, the Rashidun (632-661), is also presented as evidence.  The presence of close links between Muslim kings and ulema (scholars of Islam) and the implementation of Sharia by Muslim sovereigns strengthens the case and finally, views of noted Islamists and examples of governments of Iran and Saudi Arabia are used to close the argument.

Several assumptions are made in these arguments that have no basis in history. These assumptions are based on applying a normative framework based on European experience on Islam. Understanding Islamic religion and history using European and Christian experience as the model will, unsurprisingly, lead to distorted and/or sub-optimal results. Following is an example of Muslims and Islam being considered copies of Christians and Christianity and Christian history of Europe being considered a model for Muslims to adopt:

Consider the most famous waves of Christian violence, in the 16th and 17th centuries. Wars of religion devastated Europe, killing huge percentages of national populations. States disintegrated and acts of terror were commonplace. The main impetus for these wars was the question of which Christian sect - Protestantism or Catholicism - would rule each state. Clergy had great amounts of political power, dispensing law and owning huge tracts of land. Nationalism was, as yet, weak. The question of which religion would dominate in which area was also the question of who would rule. 

Eventually Europe’s religious wars calmed down, and a solution was reached. In the Peace of Westphalia, it was agreed that governments - not clergy - would get to decide which religion would prevail in their territories...

Nowadays, the Middle East is embroiled in a set of conflicts that look a bit reminiscent of the European Wars of Religion. A few powerful, cohesive states - Iran, Saudi Arabia, and Turkey - are fueling proxy wars in anarchic areas like Iraq, Syria, Pakistan, Afghanistan, Somalia, Libya, and Yemen...Just as the European Wars of Religion featured Christians mostly killing Christians, the Islamic Wars of Religion feature mostly Muslims killing other Muslims...The obvious solution, it would seem, is for Islam to come to the same collective realization that Christianity came to after 1648 - that church and state make for a volatile mix, and should be separated. (Source: Noah Smith: Islam Needs To Separate Church and State)

The antagonistic relationship that Christianity had with the state for its initial three hundred years has no parallel in Islam, whose relationship with the state was without serious disagreements. Furthermore, and more importantly, there has never been a church in the form of the Catholic Church in Islamic history. One can search far and wide and will not find it. There has never been a pope, with his bishops, in Islamic history that could speak for God. In medieval Europe, there was one Pope (except for a few decades) and many rulers, making the Pope's opinion and approval important. In almost all Muslim realms, in contrast, there was one king and scores of Muslim scholars to choose from. There were many kings who may have been excommunicated by Muslim clerics but since there was no central religious authority so there were few repercussions for the king (excommunicating clerics, however, suffered imprisonment, exile, and even execution for their transgression). Kings and emperors always had many more clerics to endorse them than those who reject them.    

Graham E. Fuller, in his book A World Without Islam (2012) brilliantly unpacks the differences between sway and power of the Catholic Church and the lack of anything similar in the Islamic history (as given in Separation of “church and state” in Islamic history):

Islam actually had no parallel to the intimate links between church and state in the West, where the church itself wielded great political and economic power.  While Islamists today — those speaking for forms of political Islam — constantly emphasize the indissoluble unity of religion and state in Islam (din wa dawla), in fact, this perception is largely a modern ideological construct: state power in Islam was virtually always distinct from the clerics.  Religious officials in Islamic states never appointed leadership or controlled the state.  (Clerical domination of the state in today’s Iran is a glaring exception, a modern Shi‘ite innovation.)  Even in Saudi Arabia the monarchy in most contexts is far more powerful than are clerical institutions.

To be sure, the legitimacy of Muslim rulers historically depended upon their implementation of Shari‘a law, at least in theory, but a great deal of the time rulers did not seriously implement its spirit, and they rarely could be overthrown for such religious lapses.  In fact, some medieval Muslim clerics inadvertently dispensed virtual carte blanche authority to misrule by secular powers by declaring that anarchy (fitna) was worse even than oppressive rule (dhulm).  Indeed, no sultan or Muslim ruler in Islamic history ever kneeled to ask forgiveness before a grand mufti in the way that Henry IV was forced to do before the pope in 1077 in Canossa for challenging papal authority on some key secular matters. Henry VIII of England had to break with Rome entirely simply to secure the divorce he sought from his wife.  Thus, intimate linkage between religious and state power marked most of Christian history in a way that has had no parallel in Islam.  (122-123)

And this lack of a Church, with a capital C, in Islam is not a historical development. It is what flows from the Quran and the Sunnah (of the Prophet), two basic sources of Islam. Nowhere in the Quran is there mention of the establishment of a Church. Similarly, the Prophet, in his life, did not establish a Church. Islam propagates a direct relationship between an individual and her God, enjoins Muslims to study the Quran and seek guidance from it. Clearly, this set-up does not favor the establishment of a powerful church and a priesthood that can rival kings. 

Historically, after the Prophet, the religious authority of the leader was withdrawn. The Rashidun, whose period is considered to be a model, to be emulated by all future leaders, by the Sunnis, did not have religious authority. They did introduce some new things or promoted some actions but their decisions regarding religion were always contested and remain contested today. They did not have the religious authority of a prophet, not even a pope. There were many companions of the Prophet who were considered equally or more well-versed in Islamic precepts and edicts than the four caliphs. It is nor without reason that the four righteous caliphs never claimed to be in communication with God or receiving any direct instructions (like the Prophet did). The Prophet also clearly told in his lifetime that after him, there would no revelation. The door of revelation, the direct communication with God, was permanently closed for all times to come after him. There is also no claim for a superior esoteric knowledge that the leader will have had over and above others. None of the caliphs claimed it. Although Shiites do believe Ali, the last of the Rashidun, had superior esoteric knowledge of divine rules, he ruled for only four years and what to say of his religious authority, his temporal authority was contested like none of the other three previous caliphs. During his whole tenure, he fought to end a rebellion and he was martyred before the rebellion ended.

If Rashidun could not (or did not) claim religious authority, the caliphs that came afterward had no choice but to leave religious authority in the hands of clerics. The caliphs after Rashidun were not very different from Christian or Hindu kings. They had attained power not because of their close association with Islam or the Prophet, but due to their superior military might and political acumen. They knew it and most of the Muslims under than knew it so there were not many attempts to enforce something different. Of course, there were few dynasties that did claim divine right to rule, such as the Fatimids, but their religious authority was never completely accepted in their own realm, what to say in the whole Muslim world.

The relationship between Muslim kings and emperors on one hand and the chief judge (Qazi ul-quzat) and chief law interpreter (Shiekh ul-Islam) -- two powerful positions generally reserved for clerics -- was mostly similar to the relationship between the king and the (grand) vizir. Vizirs had authority but they served at the pleasure of the king. The king could appoint any of the scholars of Islam to the above-mentioned posts and usually, the selection was based on scholar's acceptance of the sovereign's authority. 

The king had to publically follow Islam and enforce Sharia. But here again, kings had options. They could suspend or ignore rules they did not like. They could also publicly flaunt their non-acceptance of some parts of Sharia and get away with it. Most of the Muslim kings murdered their rivals (including their brothers, nephews, etc.) and fought wars against other Muslim kings, leading to the deaths of thousands of Muslims. Many of them drank alcohol and had harams full of women. 

Unsurprisingly, there is also an Islamic tradition of God-fearing, learned, and illustrious clerics avoiding and refusing any relationship with the rulers. All founders of the five major schools of thought of Islam (Imam Abu Hanifa, Imam Shafa'i, Imam Malik, Imam Hanbal, and Shiite Imam Jaafar) had an antagonistic relationship with their state authorities. A few of them, such Imam Abu Hanifa, were offered the posts of chief faqih (interpreter of law) and/or chief judge but they refused. There are also some hadiths (sayings of the Prophet) that discourage people from accepting powerful appointments or having a close relationship with rulers:

Whoever goes to the gates of the ruler will endure trail/temptation. A person does not move closer to the ruler except that he moves further away from Allah. (Source: Musnad Ahmad 8619)

He who has been appointed a judge among the people has been killed without a knife. (Source: Sunan Abu Dawud 3571)

The rule of ulema or theocracy is a concept alien to Islam. Medieval Islamic texts, many written by clerics themselves, almost never present clerics as an alternative to a bad or unislamic ruler. The concept of Walayet-e-Faqih or guardian jurist (developed by Imam Khomeini and later enshrined in the Iranian Constitution) is a new concept even in the long Shiite tradition. Even now, many of the Shiite clerics both inside and outside Iran reject this concept.  

The above discussion also invalidates the last argument. The Islamists and the governments of Iran and Saudi Arabia might claim that there is no separation of church and state in Islam but it is clearly not the case. Therefore, they can keep justifying their desires or their actions by pointing to something imaginary but their proclamations do not make it real. Some rudimentary knowledge of the Quran, the Sunnah, and Islamic history settles the question that the church and state are separate in Islam.

  

We need Christian Nationalism in the US

In The Federalist, Matthew Cockran defends Christian nationalism and its place in the US.  In his article, We Need Christian Nationalism Because Religious Neutrality Has Failed, he rejects religious neutrality and equality and claims that "our religious liberty never proceeded from attempts at religious neutrality. It came precisely from the privileged position that Christianity has historically held in America and in the West."

He defines Christian nationalism, not as the conflation of American and Christian identities or a call for theocracy or white supremacy, but in a much simpler way:

A rejection of the religious neutrality of the late 20th century in favor of 1) a recognition that Christianity has had a unique and privileged influence on our American heritage that overshadows the influences of other faith traditions, 2) a conviction that a Christian understanding of the world should predominate over other worldviews in American civic life, and 3) an understanding that a nation that successfully excised or sufficiently diluted this influence could no longer be called “American” in the same sense as before. Although more general than what the statement condemns, this understanding would actually encompass many Americans, whether they accept the label or not.

Cockran argues that all religions are not the same and religious freedom is specifically linked to Christianity: 

Different gods make different demands. One of the reasons theological liberals are so blind on this issue is their ignorant presumption that, at their root, all religions are basically the same—that they all worship the same God, proclaim the same general values and ideals, and merely have different cultural trappings or modes of expression. In such a fantasy, a neutral pluralism is conceivable, but reality is a different matter. 

Although there is only one God, there are many gods (i.e., idols) in this world. The extent to which a person will support or even accept things like secular democracy and religious pluralism depends on that person’s god... 

What then does that mean for American democracy and religious freedom? It means neither can ever be religiously neutral. Some gods demand such things; some gods merely tolerate them; and other gods abhor them. To embrace these things as worthy of our support and protection and prioritize them over other concerns is to favor some gods and therefore some religions above others.

Rather than submitting to a fantasy of religious neutrality, Christian nationalism accepts and adapts to this reality. After all, the Christian faith is the root from which our form of religious freedom grew, and the American nation is the heritage in which it is enfleshed. The positive forms of secularism and religious liberty that had been enjoyed in America grew out of the specifics of Christianity. 

Christians, for example, have always held that there is a fundamental distinction between worldly government and the kingdom of heaven. Even the statement acknowledges this. You can see it in the teachings of Jesus—that his kingdom was not of this world, and that we should render unto Caesar the things that are Caesar’s and to God the things that are God’s. 

You can see it in St. Augustine, when he wrote of the City of Man and the City of God. You can see it in Martin Luther’s Two Kingdoms theology. You can see it in the Church of Rome’s doctrine of the Two Swords. Different Christian traditions have certainly differed as to how these two realms relate to one another, and some have separated them far more than others. Nevertheless, the distinction has always been there. Civil government can be disentangled from the church precisely because of that Christian distinction... 

So in the end, even the simple idea that church and state have distinct authorities and responsibilities is by no means religious neutral. It blatantly gives Christianity a seat of privilege in the way government is organized, and it does so at the expense of some other religions. 

The same can be said of American religious freedom. Americans have deliberately refrained from establishing a state church, and we allow extremely broad freedoms for the exercise of religion and the expression of religious ideas. This was a natural outgrowth of Christian ideas, since in Christianity, salvation comes through faith in Jesus Christ—a faith that cannot be compelled by force. Accordingly, from the Christian perspective, there is very little point in using the state to enforce religious adherence... 

In America, the weight of those past decisions have always been rooted in the values of the Christians who founded and cultivated this nation. Their substance is indelibly colored by Christianity. Our Declaration of Independence hinges the entire matter of independence on the “Laws of Nature and of Nature’s God” and ascribes our rights to endowment by the Creator. 

These are by no means religiously neutral statements. They are not sectarian, grounded as they are in the language of natural law, but they are nevertheless grounded in a Christian understanding of that natural law. Not every religion sees the matter the same way. Not every religion even has a natural law tradition.

Rejecting common objections to Christian nationalism, he contends:

Some would object to this line of thought, claiming that our nation really founded as much by deists rather than Christians. There were certainly a few prominent ones in the mix, but it doesn’t weaken my case in the slightest. Deism itself was always an attempt to possess a Christian heritage without possessing a Christian faith... 

Others would claim that our religious liberty is no longer Christian because many non-Christian nations have also provided measures of religious freedom. This is true, and I’m quite pleased that they’ve culturally appropriated religious liberty from the Christian West. I believe my heritage to be of value, so I think it’s great when others learn from it.

Billy Graham's lying in honor and America's civil religion

What is America's civil religion and is the decision to allow Reverend Billy Graham's body to “lie in honor” in the nation’s Capitol in line with constitutional separation of church and state? The Rev. Graham died on Feb. 21 at age 99. He is the first religious figure that had the distinction to “lie in honor” at the Rotunda of the Capitol. The tradition of lying in state (for those who have served the American government in some capacity) and lying in honor is old. It started in 1852 when Henry Clay (Secretary of State, Senator and Speaker of the House) was laid in state in 1852. 

An article in Washington Post debates the issue of honoring a Christian pastor in the Capitol of a secular state:

Barbara Perry, director of presidential studies at the Miller Center for presidential and political history at the University of Virginia, said she thinks honoring someone whose primary service was the conversion of people to a certain faith with a Rotunda ceremony violates the Establishment Clause of the First Amendment.

Although Graham was an adviser to presidents, Perry noted, tapes came out later revealing Graham and President Richard M. Nixon sharing anti-Semitic views, and civil rights historians have noted that Graham urged the Rev. Martin Luther King Jr. and others not to press hard on the cause of racial equality. 

“Not that he shouldn’t be lauded, but does he deserve to lie in honor in the U.S. Capitol? And once you open that door, where do you stop?” Perry said. “Lying in honor should be someone who served their country. Well, how did he do that?”

The Freedom From Religion Foundation, a nonprofit organization that pushes for the separation of church and state, wrote a formal complaint letter to Ryan and McConnell. “The fact is that Graham lived his life in service to his evangelical Christian religion, and the Bible that he believed was an infallible reference manual. He placed the Bible far above the Constitution,” the advocacy group wrote. 

The advocacy group Americans United for the Separation of Church and State on Wednesday released a statement saying Graham should not have been a Rotunda honoree.

“We don’t say this to criticize a man who has died, but because the question of who should receive this rare honor warrants public discussion. … Such a high government honor for someone solely for their work spreading an interpretation of one faith offends the spirit of our First Amendment’s guarantee that government will not take actions that endorse or promote religion,” the statement read. 

The office of the historian of the House of Representatives declined to give more information about the criteria used to select Graham, or other past honorees. The Office of the Architect of the Capitol, which hosted the service, said only that such services are prompted by congressional resolution or by congressional leaders. 

At the private service Wednesday, Ryan, McConnell and Trump gave deeply religious tributes. 

“Today we give thanks for this extraordinary life. And it is very fitting that we do so in the Rotunda of the U.S. Capitol, where the memory of the American people is enshrined. Here in this room we are reminded that America is a nation sustained by prayer,” Trump told the crowd. “Today we honor him as only three other previous private citizens have been. Like the faithful of Charlotte once did, we say a prayer that all across the land, the Lord will raise up men and women like Billy Graham to spread a message of love and hope to every precious child of God.”

According to Pew Research data, about a half of Americans say they pray daily, while a quarter say they seldom or never pray. Trump’s own belief about God and his prayer life are not clear, though he does not attend church regularly and has said he does not ask God for forgiveness — two basic tenets of traditional Christian practice. About one-fifth of Americans say they have no religious affiliation. 

Source:  Richard Nixon appeared at one of Graham’s revivals in Tennessee in 1970, the first president to give a speech from an evangelist’s platform

Historians and Graham experts said his life spanned a period when there was more of a shared concept of American “civil religion” — in other words, that being a pious person in and of itself had merit. 

Graham’s other high honors, said William Martin, senior fellow in religion at Rice University and author of the upcoming “A Prophet With Honor: The Billy Graham Story,” came in part because “of just the fact that he was calling people to be Christian. To live lives as good citizens and of service.” These were decades when the connection between those things seemed obvious to Americans — even if they unofficially agreed not to speak of things like racial segregation and gender inequality. 

However, Martin said Graham was responsible for more than winning souls. He served as a kind of unofficial diplomat between the United States and foreign leaders, comforted soldiers in Korea and Vietnam, and “did more to enlarge the scope of religious freedom in Eastern Europe than perhaps any else.” 

The Wednesday service, Martin said, “to a significant extent shows the difference between then and now.” 

Historians also said while Graham typically delivered public prayers explicitly in the name of Jesus Christ, he became increasingly in his life more sensitive to the diversifying America. In contrast to his son, evangelist Franklin Graham, Billy Graham said decades ago that Muslims and Christians worshipped the same God, Martin said. Franklin Graham has called Islam “a very wicked and evil religion.” 

Wednesday shows how America includes radically different religious bubbles. While some considered the service shocking for such a diverse nation, the country’s three most prominent political leaders chose to focus not on Graham’s secular accomplishments but on his faith, known as a sincere and humble one. 

“But remember the current leadership hasn’t been remarkably hospitable to the changes” in America, Martin said.

Grant Wacker, author of “America’s Pastor: Billy Graham and the Shaping of a Nation,” said that although the lawmakers in the Rotunda on Wednesday focused on Graham’s religious faith, the late evangelist would have expanded on how that faith must lead people to confront societal problems. 

Ryan praised Graham as “challenging us to look at the right questions.” 

“Although Ryan does not say so, part of Graham’s lifelong mission was pressing people to look around at the crises on the international and national scenes and look within at the crises in their own lives, and ask what is wrong? In all cases what is ultimately wrong is sin, resulting in greed, cruelty, etc.,” Wacker wrote to the Post. 

Historians, clergy of all kinds and everyday Americans have been memorializing Graham in the days since he died, sharing stories about how his multimedia, racially integrated and nonpartisan crusades changed the face of American religion. Many have shared simple stories of how his humility and clear faith converted them. Others have debated what impact he could have had on issues such as racism and economic equality if he had made them his causes. Some say he would have bemoaned how partisan U.S. evangelicalism has become, while others argue that he planted the seeds. (see Billy Graham is the first religious leader to lie in honor at the U.S. Capitol. Some say he should be the last)

 Kimberly Winston discusses the issue with respect to American civil religion. She explains what is American civil religion and how honoring Graham is linked to American civil religion?

American civil religion is the idea that, even though the United States has no official religion and is made of up of adherents of every religion and no religion at all, there is a set of common symbols, rites, rituals and traditions that serve Americans the same way religions do for adherents. Think of the recitation of the Pledge of Allegiance, the singing of the national anthem or “God Bless America,” a military gun salute, the honoring of veterans on Memorial Day, etc. These rituals are valued, expected on certain occasions or holidays, and they unite Americans of different backgrounds in their observance...

We have separation of church and state, so why should a preacher lie in honor in the nation’s Capitol? 

That’s a thornier question. There are certainly arguments to be made for and against. Putting those aside, the tradition of publicly mourning notable Americans can buttress aspects of civil religion that bond Americans of all faiths and no faith. 

“Funerals are powerful rites of reconciliation that may dispel controversy and promote a sense of public accord,” Emma Brodzinski writes of state funerals and lying in state in the Encyclopedia of Death and Human Experience. Referring to Lincoln’s lying in state — the first by an American president in the Capitol — she continues that the “grandeur” of such a setting and such a ritual can become “a restatement of American values.” 

In other words, whether you think honoring Graham in the Capitol Rotunda is pandering to President Trump’s evangelical base or you think it is recognition due a man many beyond evangelicals considered great, his lying in honor is part of the American civil religion that can unite us all. (see Billy Graham, lying in honor and American Civil Religion)

One Nation under God

One Nation under God: How Corporate America Invented Christian America by Kevin Kruse appears to be a fascinating book on how religion/Christianity was promoted in the US by the corporations in the second half of the twentieth century. Ronald Reagan was, thus, not the first President supported whole-heartedly by the newly invigorated religious right. Eisenhower and Nixon were both successful, partly due to the support from the pulpit, a support financed by the American business.

Source: How 'One Nation' Didn't Become 'Under God' Until The '50s Religious Revival

Recently, we have seen a strong alliance developing between religious-right and business communities around the world. In many countries, this alliance has delivered amazing results. We have seen it in Turkey, where Anatolia tigers (conservative businessmen from Anatolian heartland) allied with the AKP and ended the almost ninety years rule of secular establishment. We have more recently seen it in India, where corporate India supported religious-right party BJP, under Narendra Modi, to comprehensively win in 2014 elections to form the first single-party government in India in more than two decades.  

The US seems to be an outlier in terms of church-state relationship. As discussed in a previous post (see American Secularism: A historical view of separation of the Church and the State in the US), the US is the only country of the world that keeps religion and state strictly separate. The practicing of minority or majority religions is neither restricted nor regulated. However, it was not always so. In the 18th and 19th centuries, while church-state was separate at the federal level, at the state and local level, there were laws that discriminated against minority religions, including Christian sects such Catholicism. It was only in the 1940s that Supreme Court imposed the strict separation of church-state.

Kruse informs the readers that it was about the same time that corporate America and religious-right came close. Both of them realized that they are under threat from the federal government; the religious right was threatened by the judicial branch while corporate America was being threatened by the executive branch (Roosevelt's New Deal). General Eisenhower's victory in Presidential elections in 1952 was the first national success for this alliance.  A new national motto (In God we trust), the addition of 'under God' in the pledge of allegiance and appearance of national motto on all banknotes soon followed.

Here is a review of the book (See The World Ike Wrought) and an interview with the author (See How 'One Nation' Didn't Become 'Under God' Until The '50s Religious Revival) to savor before you buy the book.

American Secularism: A historical view of separation of the Church and the State in the US

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).