The Genesis and Evolution of the First Amendment Establishment and Exercise Clauses

7/30/2019 The Genesis and Evolution of the First Amendment Establishment and Exercise Clauses

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E. Lauryl NagodeHIST405 Tim Garrison

19 June 2012

The Genesis and Evolution of the First Amendment Establishment andExercise Clauses

A foundational commitment to religious freedom is one of the most

noble, compelling, and enduring narratives that define what it means to be

an American. The idea that this commitment found expression in the

preeminent position given to the establishment and exercise clauses

contained in the First Amendment of the Bill of Rights, however, is not

supported by the historical record. The protections now afforded to religion

were, in fact, both intentionally and expressly denied by the First

Amendment. Those same protections continued to be both intentionally and

expressly withheld by Congress as a mandate of the electorate majority for

the next 150 years. Their provision ultimately occurred only after they were

brought within federal jurisdiction of the Supreme Court through the

Fourteenth Amendment's due process clause. The way Americans have

actually dealt with religion produces a much different, and substantially less

admirable narrative of national identity one in which the beliefs, practices,

and values of its historically Protestant Christian majority not only informed

the very foundation of its government, but were, and are still being

expressed in those laws challenged under the First Amendment that have

always tacitly privileged that religion.

The influence of that majority can be found in the very genesis of the


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establishment and exercise clauses themselves. Nearly all thirteen colonies

operated with an officially established religion that was directly supported by

government revenue, and in some cases enforced by compulsory attendance

law.1 Although most, especially the Church of England, were officially

disestablished following the Declaration of Independence,2 nine of the

thirteen states created by that document made explicit mention of

Christianity and its teachings in their founding constitutions, two of which

operated under explicitly pro-Christian charters well into the nineteenth

century.3

Religion was widely assumed to be necessary to a civil society,

and the state therefore required to actively patronize and promote it.4 At the

national level, the Northwest Ordinance, enacted by the Continental

Congress in 1787, made the unqualified assertion that religion, morality,

and knowledge [are] necessary to good government,5 while the very

proceedings through which the Constitution itself was drafted later that same

year were liberally sprinkled with the mention of God, Jesus Christ, the

Christian religion, and many other religious references.6

That the Constitution makes but a single reference to religion reflects

the understanding shared by the founding fathers that the government

whose operation it defined should have no interest in, and be given no power

1 Melvin I. Urofsky, The Religion Clauses, Organization of American Historians Magazine ofHistory, Vol. 5, No. 1 (1990): 20.

2 Ibid., 21.3 Naomi Cohen,Jews in Christian America: The Pursuit of Religious Equality(Oxford: Oxford

University Press, 1992), 3.4 Thomas Curry, The First Freedoms: Church and State in America to the Passage of the First

Amendment(New York: Oxford University Press, 1986), 203.5 Ibid., 215.

6 Ibid., 217.


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to address itself to that particular issue.7 Each state had already articulated

its relationship to religion, and actively incorporated that relationship in its

governing institutions. The failure of the Constitution to make explicit its

intent that states retain control over those relationships lent weight to

accusations that the document as a whole left the issue of that control

subject to the kind of questioning and debate that could lead to its eventual,

if not immediate and complete, assumption by the federal government it

proposed to create. To invalidate this argument, and obtain the final five

state votes needed for ratification, promises were made to amend the

Constitution to include a Bill of Rights that would address those concerns

despite the belief of its Federalist authors that the guarantees this

amendment would provide were already embodied in, and firmly secured by

the Constitution itself.8

That such a bill was considered so unnecessary made its introduction

by James Madison in 1789, during the first session of the newly-formed

Congress, as unpopular as it was divisive.9 More time was spent by delegates

arguing its necessity than its contents.10 While some concern was expressed

over the potential use of the general welfare clause to broadly restrict

religious liberty,11 commentary specific to the First Amendment

establishment and exercise clauses tended to be vague in detail, short in

7 Ibid., 194.

8 Curry, The First Freedoms, 193-194.9 Ibid., 194.

10 Ibid., 199.

11 Ibid., 194.


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length, and focused largely on issues of rhetorical preference.12

The first draft of those clauses contained elements culled from four of

the seven proposals submitted on the issue by the states themselves: one

from New Hampshire asserting that no laws be made touching or infringing

on rights of conscience; one from Virginia asserting the right to free exercise

according to dictates of conscience, with the law giving no favor or

preference to one religious sect over another; one from New York asserting

the right to free and peaceable exercise again according to the dictates of

conscience, with the law giving no favor or preference to one religious sect

over another; and one from North Carolina asserting that, on the basis of

religious belief, the obligation to bear arms could be met by paying another

to perform that service instead.13 Madison distilled these to read:

[5] The civil rights of none shall be abridged onaccount of religious beliefs or worship, nor shall anynational religion be established, nor shall the full and

equal rights of conscience be in any manner, or anypretext infringed.14

Submitted in June 1789, the House, busy with the more critical task of

organizing the new government, delayed consideration of Madison's proposal

for over a month and a half. Over the course of the next three months, it

went through twenty revisions: four tendered by the states, ten debated in

the House, five debated in the Senate, and the final revision drafted by joint

committee. No dispositive argument against any of the nineteen interim

12Ibid., 194, 196, and 213-214.

13 John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights andLiberties (Boulder: Westview Press, 2000): 64.

14 Ibid., 65.


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drafts is contained in the Congressional record, nor does that record provide

any substantive insight into why the sixteen words that comprise the final

draft were ultimately deemed more agreeable than their predecessors.15

The choice of those particular words, however, can be read as

reflecting the general purpose the clauses were intended to serve. The

specification ofCongress in the first line reflects an implicit understanding

that they were not to be held binding on the states themselves. Interpreting

the future active imperative shall not make as a command, rather than as

anticipatory, reflects the further understanding that they were not be used

by Congress to revoke or repeal existing state laws that touched on issues

specifically respecting the establishment of religion, or prohibiting the free

exercise thereof.16 Further, and perhaps most significantly with regard to

subsequent attempts made by the Supreme Court to arrive at a deeper

understanding of their intent, the House debates about combining protection

of religion with that of speech, press, and assembly make it clear that

delegates fundamentally perceived the exercise of religion as taking place

both in, and outside of those areas in acts of conscience, for example, that

prohibited one from bearing arms as expressly articulated in proposal New

Hampshire submitted for consideration prior to the drafting of this

document.17

Taken as a whole, the clauses must be seen more as a compromise

embodying the consensus of the delegation about the outermost boundaries

15 Ibid., 65-72.

16 Ibid., 74-77.

17 Witte, Religion and the American Constitutional Experiment, 80-82.


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to which government action with respect to religion must be held,18 rather

than the triumph of one particular party or specific viewpoint over a clear or

entrenched position.19 They defined only what could not be established or

prohibited. They left open for debate and development what conduct, short

of outright establishment or prohibition, was permissible. They applied only

to federal conduct. Those who drafted them expressly urged that their intent

be derived by looking at the text and sense attached to it by the people in

their respective state conventions. 20

That intent, according to John Witte, Jr., professor of law and director at

Emory University, is found in the tensions that existed between diverse

views and the general principles that emerged from their interaction.21 The

views in question were Puritan, Evangelical, Enlightenment, and Republican.

The principles that emerged from the interaction of those views were

reducible to what the founders called [the] 'essential rights and liberties' of

religion that consisted of liberty of conscience, freedom of exercise,

pluralism, equality, separation of church and state, and disestablishment.

The choice to protect those right and liberties constituted a major departure

from the inherited tradition of religious establishment and prescription. The

choice to cast those rights and liberties in broad terms and apply them on

their face to all persons was historically unprecedented. The

denominationally-specific freedom of exercise this choice was initially

18 Ibid., 73.

19 Curry, The First Freedoms, 193.20 Witte, Religion and the American Constitutional Experiment., 23 and 73.21Ibid., 24-25.


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intended to provide could be, and later was extended to other religious

groups. The establishment it allowed principally in the form of collecting

tithes for preferred religious institutions and religious oaths of public office

were, as John Adams noted at the time, mild and equitable, and expressly

prohibitive of active suppression and persecution on the basis of established

preference.22

It may have been, as Witte asserts by describing it in these terms, a

remarkably advanced experiment in government that affected an

essentially public religion derivative and supportive of the plurality of private

religions from which that government received its authority, and over which

it democratically ruled.23 But it was also an experiment that unquestionably

understood religion to mean Christianity, if not Protestant Christianity,24 and

one that left the task of working out the consequences of maintaining the

principle that government lacked the competence to rule on religious

matters in a society whose customs, mores, laws, and traditions were

predominantly Protestant.25

In defending the Constitution as written, Madison had admonished

critics demanding its amendment to include a Bill of Rights, that the real

danger to religious liberties lay in the hands of the majorities.26 While the

22 Witte, Religion and the American Constitutional Experiment, 37-38.23 Ibid.

24 Ibid. - According to the Congressional record, the question of where to set the line at Protestant Christianity,

Christianity, or simple theism is the only serious debate in which Congress engaged with regard to the definingwhat they meant by the term religion(Witte, Religion and the American Constitutional Experiment,83).

25 Curry, The First Freedoms, 221.26 Ibid., 205.


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1789 passage of that bill and its subsequent ratification by the states in

1791, prevented the federal government from instituting laws that directly

privileged that majority, state governments continued to operate primarily

on the basis of their support and therefore directly in their service. None of

the 48 state constitutions in effect prior to 1947 held to the federal standards

established by the First Amendment. All were rife with clauses designed to

provide a minimal level of religious freedom for all, while promoting

patronage to one favored religion always Christian, if not specifically

Protestant Christian and institutionalizing the beliefs, values, traditions and

practices of that religion as a matter of privilege.27 42 had a general clause

protecting liberty or right of conscience, but only 25 included an explicit a

free exercise clause. 17 set limits that excluded protection for actions

deemed licentious by, or as violating the perceived peace, safety, order, and

security of the majority two added morals to this list, and four added the

provision that the exercise of one religion could not violate the natural or

civil rights of others.28

The political, economic, social, and cultural tensions these laws

produced were made manageable for a long time largely through the ability

of the disenfranchised to relocate to other jurisdictions. Some went willingly.

Some to escape prejudice and discrimination. Some to avoid censure, fines,

and/or imprisonment. Others went under threat of removal, while still others

were forcibly removed by the states themselves. Mormons took a circuitous

27 Witte, Religion and the American Constitutional Experiment, 90-96.28 Ibid., 89-90.


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route from New York to Ohio, Missouri, and Illinois before settling finally in

the wide open spaces of Utah. Catholics congregated in California, North

Dakota, South Dakota, Illinois, Louisiana, Missouri, Nevada, and New Mexico.

Baptists and Methodists made the southern states, from Georgia in the east

to Mississippi in the west, their home. The Christian revival that occurred

during the first half of the 19th century with the Second Great Awakening

added a host of newly-minted faiths to the mix, and brought about the

reconquest of the eastern seaboard states by evangelical Baptists and

Methodists, as well as Roman Catholics. European and Mexican waves of

immigration in the 1840's increased the concentration of the country's

Protestant, as well as Catholic population. The Civil War permanently divided

the Protestant Christian majority into distinct northern and southern

branches of Lutheran, Presbyterian, and other denominations. Abolition

liberated and disseminated African beliefs, including those acculturated by

Christianity, across much of the country. The influx of immigrants from

eastern Europe and Russia after 1880 introduced new forms of Judaism,

Catholicism, and Orthodox Christianity to those communities of similar faith

already here, while emigration at the same time from across the Pacific

established new communities devoted to Buddhism, Confucianism,

Hinduism, and other eastern religions throughout the western states.29

Despite the relatively few accommodations for religious freedom made

at the state level by the Protestant Christianity majority for this increasingly

29 Witte, Religion and the American Constitutional Experiment, 98-99.


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pluralistic segment of the American population, few appeals were received at

the federal level during this period seeking protection of that freedom

through the provisions of the First Amendment.30 Between 1879, when the

first appeal for protection under the religion clauses was made, until the

1940, when the appeal was made that established those clauses as

warranting due process under the Fourteenth Amendment, only 35

appellants sought protection of their religious freedom from the Supreme

Court.31 That the Court could only entertain challenges to federal law

certainly contributed to the paucity of the cases they heard, but that does

not explain the equally low number of applications made for a hearing on the

issue during this time. Leo Pfeffer, legal scholar and associate general

counsel for the American Jewish Congress, suggests that this low number is

due to the character of the Protestant Christian majority itself: their

existence as a multiplicity of sects rather than a single dominant sect intent

on exploiting the coercive arm of government to protect and promotes its

tenets, and preserve its dominant status; their loyalty to formalized religion

being less personally significant than their desire to avoid adopting measures

that could be used to compel conformation with the belief and practices of a

single dominant sect; the increasing sense of nationalism they had, as well

as climate of massive industrial change in which they worked, that simply

wasn't conducive to the espousal of dogma with the intensity needed to

30 Leo Pfeffer, The Supreme Court as Protector of Civil Rights: Freedom of Religion,Annals ofthe American Academy of Political and Social Science, 275 (1951): 75.

31 Roger Stahl, Carving Up Free Exercise: Dissociation and 'Religion' in Supreme CourtJurisprudence, Rhetoric & Public Affairs, Vol. 5, No. 3 (2002) 447.


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coercively impose that dogma on others.32

While Pfeffer's observations may have objective value, they also reflect

what others see as the insidious way in which the Protest Christian majority

viewpoint has been appropriated in the way Americans perceive the

historical relationship between religion and government as a whole. The

beliefs, values, tenets and practices distinct to that religion found their way

into a variety of laws like those establishing Sunday as an official day of rest

on which neither public nor private business could be transacted, as well as

those that mandated both bible study and prayer as a required part of public

school curriculum. The subscription to Christian oaths was still requisite to

holding public office in most states, and even where their constitutions

explicitly provided protections for freedom of conscience, many still regularly

passed legislation that made it difficult, if not impossible, for the increasing

number of their non-Christian constituents to legally adhere to the tenets of

their religious faith.33 Christian associations whose sole purpose was to

proselytize to Jews were incorporated by a number of state governments.34

The National Association to Secure the Religious Amendment to the

Constitution was formed in 1860, and, under the leadership of William

Strong, lobbied for amending the Preamble to the Constitution to read: We,

the people of the United States, humbly acknowledge Almighty God as the

source of all authority and power in civil government, the Lord Jesus Christ as

the Ruler among the nations, his revealed will as the supreme law of the

32 Pfeffer, The Supreme Court as Protector of Civil Rights, 76.33 Cohen,Jews in Christian America, 40-42.34 Ibid., 39.


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land, in order to constitute a Christian government .35 Strong was

appointed to the Supreme Court bench in 1870 on the basis of those views,

and, in 1905, another Supreme Court Justice, David Brewer, gave a series of

lectures on why America was and would remain a Christian nation.36

For many during this period, freedom of religion clearly did not

necessarily mean freedom from it,37 or its flagrant public identification and

promotion of itself in almost exclusively Protestant Christian terms even at

the judicial level. Protection of religious freedom was generally assumed to

mean protection ofthatreligion. Protections were afforded to others only as

a matter of shared interest or when doing so would not pose an

inconvenience to, or imposition upon the interests of the majority and

many were unabashedly characterized by the court as a benediction of the

Christian mercy and love upon which the principles of American

jurisprudence were founded.38

The extent to which this attitude pervaded the judiciary is evident in

the argument made by the Supreme Court to support its decision in the very

first challenge to federal law it heard on the basis of the exercise clause:

Reynolds v. United States (1879).The decision of Court in this case found

precedent in what Chief Justice Morrison Waite opined as being the express

intent of the founding fathers that Congress be deprived of all legislative

power over mere opinion, but ... left free to reach actions which were in

35 Cohen,Jews in Christian America, 66 (quoting the sponsors of this particular movement).36 Ibid., 93-94.

37 Ibid., 28.

38 Ibid., 61-62 (paraphrasing City Council of Charleston v. S. A. Benjamin, (1846), Charleston, SC, Vol. IV, No. 12,

Adar 5607, March 1947).


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violation of social duties or subversive of good order.39 This intent is not, in

fact, supported by either the record of debate over the drafting the

Constitution and Bill of Rights, or any of the language these documents

contain.40 Regardless, having made that assertion and establishing that the

religious practice of polygamy constituted just such an act of subversion, the

Court's decision to uphold the federal law that prohibited it seems relatively

straight-forward, and, while of obviously questionable accuracy regarding the

intent of the founding fathers, certainly without any undue religious prejudice

or privilege.

The dissociation of belief from practice, however, is a fundamental

tenet of Protestant Christian religious ideology. It is one founded in the

Pauline tradition that associates the sacred with pure thought, and action

with the corruption of the flesh. One in which salvation is derivative of faith,

not works. One in which practice is both expressly and explicitly devalued.

One, in other words, many Christian faiths from Catholics to Jehovah's

Witnesses not only don't recognize, but actually consider inherently

apostate. One that renders the redemption narratives embraced by other

traditions including Judaism, Islam, and Buddhism with no real meaning at

all.41

While the decision of the Court to adopt this argument may have been

based on the practical need to reckon a marginal practice with the

39 Morrison Waite,Reynolds v. United States, 98 U.S. 145 (1878).

40 Curry, The First Freedoms, 217.41 Roger Stahl, Carving Up Free Exercise: Dissociation and 'Religion' in Supreme Court

Jurisprudence, Rhetoric & Public Affairs, Vol. 5, No. 3 (2002): 446-447.


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overwhelming inertia of mainstream Protestant institutions,42 it nonetheless

established a precedent that continues to be invoked to this day by both the

judiciary and legislature whenever the issue of religious exercise is raised. By

doing so, the Court has tacitly but repeatedly validated the authority of this

tenet to determine the essential meaning of the religious experience. This

has served, over time, to define as normative one of the most ideologically

distinct and controversial ways of understanding that experience in

comparison to the totality of world religious views. Of more critical concern,

is the effect both have had on surreptitiously reinforcing the perceived right

of Protestant Christianity majority who experience religion in this way to

determine the propriety of all values, traditions, behaviors, conduct,

practices, and laws adopted relevant to that experience.43

Taken in that context, the relatively late inclusion of establishment and

exercise under the due process clause of the Fourteenth Amendment in

1940, and the seemingly circuitous route the judiciary took to substantiate

their inclusion, come as less of a surprise than they might at first appear. In

1803, Marbury v. Madison established that the provision made under Article

III extended judicial power to all cases of law and equity arising under the

Constitution.44 Three cases heard over the course of the next 18 years

established the Court's power to review and overturn state laws that violated

any provisions of the Constitution.45 That power was extended following the

42 Ibid., 447.43 Stephen Feldman, Principle, History, and Power: The Limits of the First Amendment Religion

Clauses, Iowa Law Review, 81 (1996): 850-861.44 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

45 Witte, Religion and the American Constitutional Experiment, 101.


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Civil War through the Fourteenth Amendment to ensure that the laws of no

state could deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.46 Originally intended to guarantee equal treatment of

the black male slave population newly-freed to become actual citizens of the

southern states, in 1897 the Court began interpreting the language

contained in this clause to incrementally (as well as somewhat ironically)

include all of the liberties the states had insisted the Federalists amend to

the Constitution through the Bill of Rights specifically to prevent it from ever

being able to take this kind of action.47

State and local laws touching on religion were initially reviewed by the

court on the general principles of law and fairness contained in the

Constitution.48 A series of cases heard by the Court on that basis between

1815 and 1914 were instrumental to developing the legal principles of

exercise, pluralism, equality, separation, and the more sophisticated

analysis of religious rights and liberties that would become critical to later

application of First Amendment establishment and exercise protections.

Cases heard between 1923 and 1934 helped define religious liberty as

fundamental enough to be protected against both federal and state action,

and laid the judicial foundation for incorporating the religion clauses into into

the due process clause of the 14th Amendment and thereby applying to the

46 Fourteenth Amendment to the United States Constitution, Section I.

47 Terry Eastland, ed., Religious Liberty in the Supreme Court: The Cases That Define theDebate Over Church and State. )Washington, D.C.: Ethics and Public Policy Center, 1993):1.

48 Witte, Religion and the American Constitutional Experiment, 102.


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states.49

In Meyer v. Nebraska, for example, the Court, in ruling that state

prohibitions on foreign language instruction were an infringement on the

constitutionally guaranteed liberty to acquire useful knowledge, included in

its list of other such liberties the right to worship God according to the

dictates of his own conscience.50 In hearing Pierce v. Society of Sisters on a

claim of deprivation of property, the Court established in its opinion that it

was unconstitutional for a state law to unreasonably interfere with the

liberty of of parents and guardians to direct the upbringing and education of

their children simply because that education was parochial rather than

private.51 And, while the Court found the request made by the appellants for

protection under the exercise clause constitutionally supportable in

Hamilton v. Regents of University of California, Justice Pierce Butler in

rendering that opinion also wrote:

There need be no attempt to enumerate orcomprehensively to define what is included in the'liberty' protected by the due process clause undoubtedly it does include the right to entertain thebeliefs, to adhere to the principles, and to teach thedoctrine on which these students base their objectionto the order prescribing military training.52

Where, in 1845, the Court flatly rejected the claim that the exercise

clause applied to state law,53 cases like these laid the judicial groundwork

necessary reverse that position under the due process clause of the 14th

49 Witte, Religion and the American Constitutional Experiment, 102.50 Meyer v. Nebraska, 262 U.S. 390 (1923).

51 Pierce v. Society of Sisters, 268 U.S. 510 (1925).

52 Hamilton v. Regents of the University of California, 293 U.S. 245 (1934).

53 Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 589 (1845).


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Amendment. In 1940, Cantwell v. Connecticutbecame the first case to be

reviewed by the Court on that basis, and one of the few in the history of

decisions involving exercise in which the justices unanimously voted to

overturn the state law in question.54 Justice Owen J. Roberts opined on behalf

of his fellow justices that the Fourteenth Amendment has rendered the

legislatures of the states as incompetent as Congress to enact laws

respecting the establishment of religion, and the free exercise thereof.55

Seven years later, the Court heard its first case on establishment, Everson v.

Board of Education, in which the second sentence of Justice Hugo Black's

majority opinion began with the phrase, The First Amendment, as made

applicable by the Fourteenth.56 Even dissenting jurists in the case felt it

necessary to comment on that applicability: Justice Robert Jackson noted that

states cannot, through school policy any more than through other means,

invade the rights secured to the citizens by the Constitution one of [which]

is to be free of taxation to support a transgression of the constitutional

command that authorities shall make no law respecting the establishment of

religion, while Wiley Rutledge, Felix Frankfurter, Robert Jackson, and Harold

Brown asserted neither so high nor so impregnable today as yesterday is

the wall raised between church and state by Virginia's great statute of

religious freedom and the First Amendment, now made applicable to all the

states by the Fourteenth.57

54 Eastland, ed., Religious Liberty in the Supreme Court, 17.55 Cantwell v. Connecticut, 310 U.S. 296 (1940).

56 Everson v. Board of Education, 330 U.S. 1 (1947)

57 Eastland, ed., Religious Liberty in the Supreme Court, 67 and 71.


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Despite these advances, the distinctly clear perspective of the

Protestant Christian majority continued, and still continues to pervade the

decisions of both the judiciary and legislature. National and state laws,

motivated by the interests of that majority, have consistently worked to

promote, as secular, a variety of traditions essentially derivative of Christian

religion that adversely effect the ability of non-Christian exercise.58 While

Cantwell did broaden the scope of religious freedom, as Urofsky notes, it did

so with the explicit proviso that restraints and prohibitions could be imposed

on any religious activity deemed to pose a clear and present danger to the

public welfare by a government that receives it power from, and generally

works to advance the discrete interests of the democratic majority that, in

this country, has historically been Protestant Christian in constitution.59 In

Everson,Justice William O. Douglas, joining Black in the majority opinion,

wrote that the First Amendment does not say that in every aspect and all

respects there shall be a separation of church and state, going on to assert

in his summary that we are religious people whose institutions presuppose a

Supreme Being.60 Despite repeated claims of its adherence to the definition

of establishment first formulated in that case that borrowed from Jefferson to

erect an impenetrable wall between church and state, the Court has

consistently refused to apply or even invoke that definition without

qualifications the exception being McCollum v. Board of Education in 1948

which the Court abandoned as untenable just four years later inZorach v.

58 James H. Landman, Putting Beliefs on Trial, Social Education, 68.4. (2004): 27859 Urofsky, The Religion Clauses, 150.60Ibid., 21 (quoting from the court record).


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Clausen a failure political science professor William A. Carroll attributes to

the Court's fundamental inability to conceive of neutrality as extending to

all forms of religious belief, including non-belief.61

The very nature of the appeals for protection under the religion clauses

reveals the extent which the Protestant Christian majority is privileged under

the law. Of the 418 such cases heard by the Court between 1946 and 1980,

only 32, or less than 8%, were brought by, or on behalf of mainline

Protestant Christianity at a time when the overwhelming majority of

Americans identified themselves as adherents of that faith. Significantly, the

kinds of laws from which protection was sought by this majority more often

involved zoning, tax law, regulation of religious schools, and challenges to

judicial authority compared to those of greater consequential dimension

being sought by non-majority appellants in areas of prisoner rights,

leafleting, proselytizing, soliciting, employment, public school education,

family law, medical care, and aberrant practices. A comprehensive analysis

of all the data gathered in this particular study clearly demonstrates that

litigants from marginal religious faiths are more likely to experience conflict

with secular laws than members of the Roman Catholic faith, or members of

mainline Protestant churches, and consequently [are more likely to] become

involved in free exercise litigation.62

The real story of America's relationship with religion is neither noble

61 Carroll, The Constitution, The Supreme Court, and Religion, The American PoliticalScience Review, Vol. 61, No. 3 (1967): 657-658, and 663.

62 Frank Way and Barbara J. Burt, Religious Marginality and the Free Exercise Clause, TheAmerican Political Science Review, Vol. 77, No. 3 (1983): 656-659.


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nor particularly compelling. It is the story of a dominant culture that has so

consistently and completely controlled the understanding of social events

and reality that its understanding [has become] the normal, the neutral, and

the natural - one whose contingent assumptions and interpretations

[have] become so neatly woven into the social fabric that they are no longer

understood as cultural or even recognized anymore as the manifestations of

power they actually are.63

In a country of such enormous religious pluralism, the consequences of

blindly continuing to recast that pluralism in terms distinct to the experiential

norms of a single faith, regardless of its majority membership or cultural

significance, can be devastating. The insistence of Jehovah's Witnesses to

knock on doors, Jews to establish an eruv, Muslims to face Mecca and pray

five times a day as well as events like Jonestown, Waco, and 9/11 can

only truly be understood by looking for definitions of religion that

accommodate belief being essentially inseparable from practice ones,

perhaps, less so inherently divisive as those that have come to so

substantively inform the very way Americans look at, as well as legislate

religion as a whole.

63 Feldman, Principle, History, and Power, 853-854.


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Works Cited

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Cohen, Naomi.Jews in Christian America: The Pursuit of Religious Equality.Oxford: Oxford University Press, 1992.

Curry, Thomas J. The First Freedoms: Church and State in America to thePassage of the First Amendment. New York: Oxford University Press,1986.

Eastland, Terry, ed. Religious Liberty in the Supreme Court: The Cases ThatDefine the Debate Over Church and State. Washington, D.C.: Ethicsand Public Policy Center, 1993.

Feldman, Stephen. Principle, History, and Power: The Limits of the FirstAmendment Religion Clauses. Iowa Law Review, 81 (1996): 833-882.

Flowers, Ronald B. Freedom of Religion versus Civil Authority in Matters ofHealth.Annals of the American Academy of Political and SocialScience, 446 (1979): 149-161.

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Witte, John, Jr. Religion and the American Constitutional Experiment:Essential Rights and Liberties. Boulder: Westview Press, 2000.

Documents

The Genesis and Evolution of the First Amendment Establishment and Exercise Clauses