Government and Religion
About the relationship between religion and government? In America, it’s complicated.
It's not completely inaccurate to claim that Colonial America was founded as a Christian entity. Eight of the original 13 colonies had some version of Christianity as an official religion. New Jersey, Pennsylvania, and Maryland were created 'as plantations of religion.’ In the Colonies, Church attendance was often mandatory, taxes were collected to support clergy, and laws addressed elements of religious practice. For instance, in Massachusetts there were statutes against idolatry, witchcraft, and blasphemy. Whether America was—or should be—a Christian nation was debated and fought over (sometimes literally) throughout early US history. Some of the architects of the new nation believed that government and religion needed to be entangled. In a 1798 letter to the Massachusetts militia, John Adams, the Second President of the United States, wrote:
We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition and Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other….
But there were also founders who expressed enmity toward government involvement in religion. Examples here and here. It is their view—that there should be limits on government involvement in religion—that ultimately won out, and was incorporated into the Constitution.
The new Constitution was explicitly criticized, particularly by the anti-federalists—colonists opposed to a stronger federal government—as a godless document. (See: Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case against Religious Correctness, New York and London: W. W. Norton and Company, 1997.)
Religion is mentioned only twice in the Constitution. In Article VI there is a prohibition on religious tests for holding office. And in the First Amendment there is language about “establishment of religion” and “free exercise of religion.” On its face, the First Amendment prohibits any Federal (National) law that would either “establish” a state-sanctioned religion, or “prohibit free exercise” of religious practice.
Even some of the founders who believed that government should be actively engaged in religious matters were comfortable with limiting the Federal government in this sphere. They argued that religious establishment should be a State, not a Federal responsibility.
This preference for legislating religious matters as a state right is not surprising. Although some of the colonies had versions of Christianity as state favored religions, it wasn’t the same version of Christianity. There was the Anglican church in the southern colonies, the Puritan church in New England, Quakers in Pennsylvania, the Catholic Church briefly in Maryland, and so on. Even though there was agreement that a morality based in religion was an important concern of the state, there were clear disagreements about which specific religion should be favored for this purpose.
State establishments of religion persisted into the early 1800’s, with Massachusetts becoming the final state to remove its establishment in 1833.
The First Amendment banned Federal (National) government involvement in religion, but did not necessarily apply to State governments. A ban on state government involvement in religious matters followed the ratification of the 14th Amendment in 1868. Specifically, the clause that guaranteed “equal protection under the law” was interpreted to mean that there can be no religious favoritism on the part of state governments either.
Today we have 200-plus years of court decisions to help us understand what “freedom of religion”, and the “establishment clause” actually mean. Unfortunately, a definition that yields predictable results in practice remains a moving target.
One reason for this is that many of the understandings that we accept as derived from America’s founding principles, were not necessarily clear to, or even intended by the founders. This is broadly true across many categories of ideas, and not just concerning the state and religion.
Government handling of slavery is an issue that illustrates this. Jefferson wrote that “all men are created equal and endowed with inalienable rights.” But, that didn’t lead him to lobby for political or civil rights for women or Blacks. Like 12 of the first 15 presidents, Jefferson was a slave owner, and his livelihood was based on slaveholding. To us, his words and actions regarding slaves and slavery, and his pronouncements about equality seem entirely incompatible.
Jefferson could also promote a ‘wall of separation’ between Church and State. But, that didn’t prevent him from attending and endorsing the Christian worship services that were held in the House of Representatives chambers on Sunday mornings.
One primary area of interaction between government and religion involves funding. Marci A. Hamilton describes American court history vis-a-vis religion and government funding as follows:
“Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.” https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264
Over the years, the Supreme Court has refined “tests” to apply in cases concerning “establishment”. Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state. https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion
In other areas where government actions affect religious practice, the Court has applied a two-part test: 1) Does the government have a “compelling interest” for acting, and 2) Is the government taking the “least restrictive means” to serve that interest?
Under this test, the Court has ruled that public entities like schools that allow facilities to be used after hours must also allow religious groups to use the facilities. It has also ruled that government acts concerning health and safety—vaccination requirements to attend school, for instance—can take priority over religious objections to vaccination. (Prince v. Massachusetts, 321 U.S. 158, 1944.)
In cases concerning drug laws and religion, the Court has ruled in favor of the government. In one decision Justice Antonin Scalia wrote:
....the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. (https://www.oyez.org/cases/1989/88-1213)
Discrimination lawsuits against religious institutions have generally gone the other way. For instance, the hiring and firing decisions of religious schools may not be litigated on basis of employment discrimination protections. (https://www.supremecourt.gov/opinions/19pdf/19-267_1an2.pdf).
So what about government actions regarding the Covid-19 pandemic and religion? How has the court ruled? And which understandings has the Court used to justify its decisions? (An ongoing post about these court cases is here.)
On November 25, 2020, the Supreme Court ruled against State of NY restrictions on the size of religious gatherings. The Court found that the restrictions treated religious establishments differently than entities identified as “essential businesses.” (https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf.) The ruling indicates that in America the practice of religion is an essential business, and the government should be complicit in support of that. So, in America, that relationship between religion and government? It’s complicated.