Religious convictions exist in a state of tension with the social order and the laws that sustain it. The conflicts resulting from this tension can be analyzed in general conceptual terms that shed light upon the fundamentally different organizational principles of religious and political systems. There are two dominant manifestations of this inherently conflictual relationship.
The first is in movements of resistance where theological and ethical beliefs lead adherents to eschew the normal legal and legislative means societies provide to redress grievances in favor of more confrontational means of expressing their commitments. The second approach is for religious petitioners to utilize the established legal and political channels to seek relief from what are perceived to be restrictive burdens upon the expression of their faith. Both of these approaches reveal the way religious convictions instigate a continued rearticulation of the national ethos and, in the United States, the meaning of the First Amendment of the Constitution.
The Religious Universe
Religion, as sociologists since Émile Durkheim have reminded people, is a social fact. Moreover, it is in the words of the noted anthropologist Clifford Geertz a cultural system that “synthesizes a people’s ethos” and provides for them “the picture they have of the way things in sheer actuality are.”
Small wonder, then, that religion, by virtue of its world-creating function and cosmic frame of reference, always exists either in actual or potential friction with the world shaped by human hands and collective will, particularly the world held in place by legal codes and the enforcement and punishment mechanism that inevitably accompanies them. When Saint Peter is quoted as saying in the Acts of the Apostles that “we must obey God rather than humans,” he is announcing far more than parochial sentiment. Even the casual observer of political events is aware of the worldwide tensions triggered by religion and by questions of religious tolerance, nowhere more than in secular societies.
Each religion and each believer must work out this tension. In the United States there are more than 1,000 spiritual traditions with more than 70 percent of Americans identifying with one of them. They are located on a continuum between strong noncompliance, and even resistance to the prevailing political and legal consensus, and peaceful compliance. Sociologists have often categorized the end points of this continuum by placing churches, which exist in a state of low tension with their host societies at one end, and sects, which always manifest a degree of friction with churches and, at times, with society itself at the other. In reference to the latter, one need only consider the Amish or some of the apocalyptic groups that periodically announce a cosmic cataclysm and the damnation of vast numbers of the unrighteous to be reminded that a segment of the population views the outside world as a contagion to be avoided in the name of doctrinal purity.
There are, moreover, new religious movements that also populate the same continuum, ranging from placid New Age groups to more contentious assemblies seen in recent history in the Branch Davidians and the devotees of Heaven’s Gate. Even the mainline churches engage in principled conflicts with the national ethos and with government policy. Here, one might consider the “culture wars” that have grown more and more strident in the United States over questions of abortion, homosexuality, and gay marriage to be reminded that even the most established ecclesiastical bodies such as Southern Baptists and Roman Catholics find themselves at times in active opposition to the prevailing legal and political climate and actively seek to amend it in favor of their moral convictions.
Religion and Resistance
In a famous biblical passage in the book of Romans, Saint Paul announced that it is the duty of Christians to obey all political leaders, regardless of the policies they initiate, because God sustains and upholds all civil authority. While noteworthy historical figures such as Saint Augustine and Martin Luther invoked this passage to urge acceptance of the legal order, even they argued that the command of God to be dutiful and obedient citizens meets its limit when governing bodies infringe upon the integrity of religious belief and practice.
Others are much less sanguine about the role of government and its divine benediction. Whether from explicit theological principles or from a radical social analysis in light of these principles, modern history has fashioned a list of noteworthy leaders who were convinced that civil disobedience and direct confrontation with the social order were the only effective way to remain faithful to the divine message and to unmask the violence and protection of elite interests that drive the political and legal apparatus. In his early career, Reinhold Niebuhr, like many contemporary advocates of Liberation Theology, reversed Saint Paul’s admonition to obey all governmental regulations. Instead, he argued that all movements seeking to overturn systems of political and economic injustice have at least a tacit relation to the central concerns of true religion. His Moral Man and Immoral Society was the inspirational volume in the theological education of a young doctoral student at Boston University, Martin Luther King, Jr. In that volume, Niebuhr insisted upon “the brutal character” of all social institutions, the powerful economic interests that control their direction, and the futility of the hope that such injustice can be successfully destabilized by reason, ethical persuasion, or the established means of transferring political power.
Emboldened by these convictions, King led the historic protests that characterized the Civil Rights era. He also was inspired by another religious leader, Mahatma Gandhi, whose nonviolent oppositional tactics echoed the sentiments and won the admiration of Niebuhr. In his famous letter from the jail in Birmingham, Alabama, King chided liberal members of the clergy who expressed “a great deal of anxiety” over the methods employed by King and his followers to break laws perceived to be unjust and willingly suffer the penalty for their violation. King responded that the church had become “weak” and “ineffectual” from its implied if not explicit defense of the status quo and that “freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”
Among those with a similar outlook are noted religious figures, such as Dorothy Day, Malcolm X, and Dan and Philip Berrigan, as well as various groups, among them the Atlantic Life Community. Committed to acts of civil disobedience, such as damaging guided missile systems on nuclear submarines, religious groups and individuals act in the name of theological convictions that, in their minds, are fundamentally alien to the moral norms governing national priorities in general and matters of defense in particular.
Religious Convictions and the Rule of Law
Their more radical coreligionists notwithstanding, most denominations and their individual adherents manifest their frustration over the inability to express substantive beliefs and practices by means of the courts, relying on the First Amendment of the U.S. Constitution. The section of the First Amendment discussing religion has two phrases that have had an uneasy relationship throughout American history, especially since the early 1940s when issues of religious liberty came to be dominated by judicial decree rather than legislative action.
The first is the establishment clause, which states that the government must remain officially agnostic concerning the truth claims of particular denominations, assuring that no one faith be granted preferential treatment. The second is the free exercise clause that prohibits restrictions placed upon the practice of faith. How the courts have adjudicated the often contradictory nature of those two norms is a study in interpretation and judgment that has alternately elated and infuriated religious claimants as the courts, most notably the Supreme Court, have struggled to create a just and durable standard that can allow national policy to honor the importance of the free exercise convictions of religious practitioners on one hand, and the legitimate interests of the government in seeking to defend the establishment clause on the other.
The most profitable way to analyze how the court balances the disequilibrium between establishment and free exercise is to examine its standard of review. This standard will sometimes change, normally with the appointment of new justices, but also, at times, it can be amended in reaction to an extreme holding by an over litigious or overindulgent court. For example, in Sherbert v. Werner (1963), the court found in favor of Sherbert, a Seventh-Day Adventist who had lost her job because she refused to work on Saturday. The decision was seen by many as a rebuke to Braunfeld v. Brown (1961), in which the justices were unsympathetic to a Jewish business owner who had argued that it was unfair to force him to close his store on Sunday, since his Sabbath duties forced him to close it on Saturday.
Since the 1940s, the court has developed three standards of review ranging from low to high level scrutiny on matters of religious conflict with the law. At the low level, the court will uphold a law if it is in pursuit of “legitimate” government interest and is reasonably related to that interest. Free-exercise claimants win few decisions under this standard. With intermediate or heightened scrutiny, the court will uphold the challenged law if it represents “significant” government interest and is substantially related to that interest. Free-exercise litigants win a considerable number of cases under this guideline. At the level of strict scrutiny, the court will uphold the law only if it reflects “compelling” government interest and is narrowly tailored to achieve that interest.
Free-exercise claimants win most of these cases. An example of the latter can be found in West Virginia State Board of Education v. Barnette (1943). In this case, the justices ruled that children of Jehovah’s Witnesses who refused to say the Pledge of Allegiance were within their legal rights since it was deemed by them to be idolatrous. Justice Robert H. Jackson stated in his opinion that the purpose of the First Amendment was the protection of “the rich cultural diversities” of American life, which come “at the price of occasional eccentricities.” Similarly, in Cantwell v. Connecticut (1940), the court decided in favor of Jehovah’s Witnesses who had been legally barred from door-to-door proselytization. Writing for the majority, Justice Owen J. Roberts declared that free exercise was “absolute … acceptance of any creed or the practice of any form of worship.” This level of strict scrutiny or of compelling government interest was also upheld in Wisconsin v. Yoder (1972), in which it was ruled that Amish parents, fearing contamination from the culture and seeking to follow their own social customs, could circumvent the law by removing their children from public school after the eighth grade.
With Employment Division v. Smith (1990), however, in which state government employees fired for the “sacramental” use of peyote were denied unemployment compensation, the court did away with the standard of strict scrutiny and compelling government interest. This verdict was a rebuke not only to Frazee v. Illinois Department of Employment Security (1989), in which the petitioner was granted unemployment benefits after he was fired for refusing to work on Sunday owing to his Christian beliefs, but to an expansive court bias in favor of free-exercise claimants that had characterized decisions since the 1940s.
Currently, a standard more partial to establishment interests has dominated judicial philosophy vis-à-vis religious groups seeking relief from restrictions. Justice Sandra Day O’Connor employed the concept of “endorsement” in a number of cases to express this approach. According to this concept, the First Amendment prohibits either endorsement or curtailment of religion by the government. Justice Anthony Kennedy followed a similar path in invoking the idea of “coercion” in reference to the new standard. It was exemplified in his opinion in Lee v. Weisman (1992), which outlawed prayers at a public middle school graduation ceremony, and in Santa Fe Independent School District v. Doe (2000), in which Justice John Paul Stevens, writing for the majority, prohibited student-led prayer at high school football games. Justice David Souter changed the form but not the content of this method in his utilization of the concept of neutrality in McCreary County v. ACLU (2005), in which a county’s display of the Ten Commandments on its courthouse wall was ordered removed.
As the courts have largely retained this restrictive reading of the free exercise clause, religious claimants have found that legislation has become the most beneficial avenue to secure their interests. Since the Smith ruling in 1990, Congress has passed some 200 federal statutes or statutory amendments designed to provide new protections, immunities, and benefits for religious groups. Perhaps the most notable and contentious of them was the Religious Freedom Restoration Act (RFRA) in 1993 that restored the compelling state interest test. In reaction, in City of Boerne v. Flores (1997), the Supreme Court declared the RFRA unconstitutional as applied to the states.
There was some relaxation of this combative environment between the legislative and judicial branches in the wake of the Religious Land Use and Institutional Persons Act (RLUIPA), passed by Congress in 2000, in which strict scrutiny was mandated in judging the right to worship claims of institutionalized persons. This bill also served to limit the restrictions placed upon the religious liberty of confined persons. The Nation of Islam had relied upon earlier strict scrutiny verdicts to secure greater tolerance for its own radically separatist creed, which had found its greatest locus for growth within the nation’s prisons.
In Brown v. McGinnis, incarcerated members of the Nation of Islam won the right to have services with a clergyman (NY 2d, 1962), but in O’Lone v. Estate of Shabazz (1987), the Supreme Court determined that depriving Muslim inmates of Jumu’ah prayer was not a free exercise violation, since a special burden would be placed on prison officials. The ruling stated that as long as prison regulations are “neutral and reasonable” they meet the requirements of the Constitution. The RLUIPA served as a relief for numerous incarcerated persons seeking the freedom to practice their faith, and the Supreme Court gave its approval to the act in its ruling in Cutter v. Wilkinson (2005), but, as of 2013, the Smith ruling with a low to intermediate level of scrutiny remains the guideline for the courts in First Amendment cases pertaining to religion.
No one can possibly foresee what future direction the court will take in its deliberations on the role of religion in public life. However, given the sacred warrant that religious claimants rely upon to substantiate their convictions, and the decidedly secular and practical warrant that legislatures and courts rely upon, both the courts and the streets will be proving grounds for the ever-uneasy relationship between religion and the state.
- Geertz, Clifford. “Religion as a Cultural System.” In The Interpretation of Cultures. New York: Basic Books, 1973.
- Gordon, Sarah Berringer. The Spirit of the Law. Cambridge, MA: Belknap, 2010.
- King, Martin Luther. “Letter From a Birmingham Jail.” In Why We Can’t Wait. New York: Mentor, 1963.
- Maclure, Jocelyn and Charles Taylor. Secularism and Freedom of Conscience. Jane Marie Todd, trans. Cambridge, MA: Harvard University Press, 2011.
- Niebuhr, Reinhold. Moral Man and Immoral Society. New York: Scribner’s, 1932.
- Witte, John, Jr. and Joel A. Nichols. Religion and the American Constitutional Experiment. 3rd ed. Boulder, CO: Westview, 2011.
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