The State and Religion in a Nutshell
Author:
Berg, Thomas C.
Edition:
3rd
Copyright Date:
2016
15 chapters
have results for the state and religion in a nutshell
Chapter Two. A Brief History of American Church-State Relations 74 results (showing 5 best matches)
- Instead, the Reformation created the first fundamental religious division in Western Europe. Wars broke out between Protestants and Catholics. In Germany, these conflicts were temporarily settled in 1555 by the Peace of Augsburg, under which the religion of each prince became the religion of his principality ( , or “whose the rule, his the religion”). This patchwork of Protestant and Catholic states typifies one possible solution to the problem of religious disagreement: let each locality determine its religion, and dissenters can move to a more hospitable locality. An analogous solution is the American principle of federalism, under which each state pursues its preferred policies. In matters of religion, the American states once had power to pursue their own policies, but federalism is of reduced importance now because all states must obey the principles of the Religion Clauses.
- Still other scholars argue that the Religion Clauses reflect no substantive theory about how government should treat religion—only a prudential judgment that the new federal government should not be involved in such matters. In this view, the religion provision primarily embodied a rule of federalism: government policy toward religion, whatever it might be, should be left to the states. These critics point to the fact that there were disputes throughout the states in 1789 about how government should treat religion, but that in the brief congressional debates on the First Amendment none of these disputes was discussed in detail or resolved. Thus, it is argued, the framers could have done no more than assign these matters to the states.
- , like many early decisions protecting religion from state and local laws, involved Jehovah’s Witnesses. This aggressive sect engaged in extensive street preaching and door-to-door solicitation in the 1930s and 1940s, making verbal attacks on the U.S. government and on organized religion, especially the Catholic Church. State and local restrictions on the Witnesses’ activity led to 18 Supreme Court decisions between 1938 and 1953. Over and over again the Court held that regulations violated the Witnesses’ rights of free speech and free exercise of religion. Coming just after the New Deal Court had begun deferring to government economic regulations, these decisions established speech and religion as “preferred freedoms” that required an unusually strong justification to restrict.
- The European settlers of what became the United States included many people who wanted to practice religion free from persecution and from corrupt (in their view) Old World churches. Ever since, religion has played an important role in American history. Conversely, that history is important to understanding constitutional principles concerning government and religion. Justice Rutledge once stated that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” , 330 U.S. 1 (1947) (Rutledge, J., dissenting). Some critics say that the Court’s religion decisions have ignored history, or read it inaccurately. In any event, it is important to have some understanding of the history of government and religion in America.
- Madison’s “Memorial and Remonstrance” is perhaps the best known document in American church-state relations after the First Amendment itself. The petition eloquently weaves together a variety of arguments against state support for religion, and so can act as a survey of the arguments.
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Chapter Seven. The Definition of “Religion” 30 results (showing 5 best matches)
- The theistic definition of religion has come under challenge in recent decades, however, because two other kinds of beliefs have become increasingly common and prominent in American culture. The first challenge comes from recognized world religions that do not believe in a divine being. The Supreme Court stated, in a footnote in a 1961 decision, that a number of religions “do not teach what would generally be considered a belief in the existence of God,” including “Buddhism, Taoism, Ethical Culture, [and] Secular Humanism.” , 367 U.S. 488 (1961). These faiths have become more prevalent and noticeable in America in recent years, in striking down a state requirement that public officials swear a belief in God, set forth the principle that the government may not favor “those religions based on a belief in the existence of God as against those religions founded on different beliefs.”
- United States v. Seeger
- The complications involved in defining “religion” are more obvious now than they once were. For much of Western history, most people understood “religion” solely as a set of beliefs and practices relating to a divine being, such as the God of Judaism and Christianity. At the time of the founding, for the vast majority of Americans, traditional theistic religions were the only belief systems that gave a comprehensive account of the nature of the universe and the meaning of human existence. Even Deism, the major competitor to traditional Christianity during the founding period, affirmed belief in a divine being, albeit an impersonal one who did not intervene in the natural world or human affairs. And even the world religions that were unfamiliar and exotic to Westerners—Hinduism, for example—generally
- 2. A second option would be to adhere to a more traditional understanding of religion as involving duties and relations to a Supreme Being, or at least duties and relations stemming from some divine moral order. Proponents of this position argue that it is more consistent with the framers’ original understanding of the meaning of religion; in part they point to the rejection of an earlier First Amendment draft that would have protected “liberty of conscience” (see Chapter 2, p. ). They also argue that the Constitution gives distinctive protection to religion because it is not simply one moral view among the many that individuals can choose, but involves a duty to a higher power that the believer is unable to avoid. Older formulations captured this idea. See, e.g.,
- The Vietnam decisions interpreted a single statute protecting religiously motivated behavior, and as such have authoritative force only for that statute. However, similar questions arise, and have much broader consequences, under the general protection given by the Free Exercise Clause. Should “religion” in the Constitution cover only beliefs with a content analogous to that of theism, or should it encompass any belief that plays a similar role or function in the claimant’s life? The Supreme Court touched on the issue in , 406 U.S. 205 (1972), holding that Amish parents and children had a free exercise right to be exempt from compulsory school laws, but stating that parents who withdrew their children from school on the basis of Thoreau’s ideas would not be exempt because such a choice would be “philosophical and personal rather than religious.” This statement suggested a retreat from the broad, functional view of religion set out in the Vietnam cases. But it was dicta, since the...
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Chapter One. Introductory Overview 99 results (showing 5 best matches)
- The First Amendment is part of the Bill of Rights, the ten amendments that were added in 1791 to provide extra assurance that the new federal government would not interfere with the prerogatives of state governments or the liberties of citizens. The religion provision states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Courts and commentators often refer to these as two separate religion clauses—non-establishment and free exercise—and analyze cases as falling under one clause or the other. But other commentators argue that the two clauses are really one and must be read in light of each other rather than in isolation, to harmonize rather than conflict; after all, the clauses were enacted simultaneously as a single statement about church and state.
- Now, however, because of changed circumstances, the three values above often clash, at least if each is pursued to its logical conclusion. One reason is that active, welfare-state government now regulates and affects nearly all areas of life, from operating schools to regulating commercial activity to subsidizing various social policies. As a result, for example, maintaining church-state separation or religious liberty in the face of regulation may require treating religion quite differently from other activities. And as government grows in size and scope, it becomes more and more difficult to avoid any contacts with religion (the strict separation value), unless religion is treated as an entirely private matter—and to confine religion to the private sphere can involve both discrimination against religion and restrictions on full religious liberty.
- However absurd his statement was, Bush had instinctively reflected the attitude of a great many Americans concerning the relationship of government to religion. We have been, and despite many predictions continue to be, a people with a strong religious strain. According to recent surveys, Americans’ belief in God remains high at 89 percent and religion is important to a far higher percentage of Americans (53 percent) than citizens of comparable wealthy nations (11 to 25 percent in Japan and Europe). At the same time, most Americans want the state not to become too involved in religious affairs—an attitude that is expressed sometimes in the idea of separation between church and state, and sometimes simply in the idea of religious liberty. Some observers think that there is a tension between the notion that government should be influenced by religious values and the notion that government
- In the last 30 years the Supreme Court has—with some exceptions—placed more emphasis on the equal treatment value and less on church-state separation. The Court’s shift was most notable in two areas: (1) its holding in that religious conduct may constitutionally be subjected to the same laws as the rest of society, no matter how great the burden on religion (see Chapter 3); and (2) its approval of more and more forms of government aid to religious organizations on the same terms as non-religious organizations (see Chapter 5, section C-2). These holdings stand in tension with earlier decisions that (1) had protected religious practice from some general laws, and on the other hand (2) had forbidden many forms of government aid to religion, in order to maintain a strong church-state separation. The shift in decisions shows that in a time of active government, there may be conflicts between the values of separation (keeping religion distinctively apart from government) and equality (...
- Other critics argue that the original purpose of the Religion Clauses was simply to prevent the new federal government from interfering with the religious policies of state governments, several of which still had tax-supported churches in 1791. Note that the Establishment Clause prohibits any federal law “respecting an establishment of religion,” which may include attempts to interfere with state establishments. Such a “state’s rights” principle cannot logically be applied to restrict state governments. But this argument applies with more force to the Establishment than to the Free Exercise clause. The latter does not contain the “respecting” language that suggests a concern for protecting state policies. Moreover, in contrast with the divided state views on support for religion as of 1791, the state constitutions had a consensus in favor of free exercise of religion—a consensus that the Free Exercise Clause could have embodied. See, e.g.,
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Chapter Four. Religion in Government Institutions and Activities 125 results (showing 5 best matches)
- In , 465 U.S. 668 (1984), the Court upheld, by a 5–4 vote, the inclusion of a nativity scene, depicting the birth of Jesus, in a city-owned display that also included Santa Claus, reindeer, and other Christmas figures. The Court noted that religious references and acknowledgments have pervaded American government through history: official proclamations of thanksgiving or prayer, official holidays on major religious days, “In God We Trust” on coins, religious paintings in state-run museums. The Court argued that non-coercive recognitions of religion are justified to avoid a “callous indifference” to the importance of religion in our culture. Examining the display “in the context of the Christmas season,” the Court found that—given the presence of secular elements—its purpose and effect were simply to “take note” of a popular and long-established holiday. It distinguished the crèche, a mere acknowledgment of religion, from Bible readings in public schools (
- Religious elements and activity are present, and raise issues, in other government institutions besides the public schools. The general principles in the two areas are similar, but the Court has been more willing to accept government-sponsored religious elements in non-school contexts. In contrast to the “special sensitivity” about state imposition of religion on schoolchildren, the justices seem less inclined in other contexts to try to disentangle religion from public displays and ceremonies that make up “civil religion.”
- The Court also rejected the argument that without official religious exercises, “a ‘religion of secularism’ is established in the schools.” The majority said that although the government could not establish secularism “in the sense of affirmatively opposing or showing hostility to religion,” barring official exercises did not have that effect. The principle of neutrality allowed room, the Court suggested, for the study of the Bible or comparative religion “objectively as part of a secular program of education.” Justice Goldberg, concurring, added that schools could and should avoid a “brooding and pervasive devotion to the secular” by a curriculum that included “teaching religion, as distinguished from the teaching religion” (emphases in original).
- Opponents of secular-oriented school curriculums have pursued legal challenges but with little success. One strategy has been to try to get elements of current curricula declared a “religion” and therefore banned from the schools under the Establishment Clause. In Mobile, Alabama, a group of parents sued to enjoin the use of 44 textbooks in home economics and social science courses, claiming that the books taught moral relativism and ignored the role of religion in American life. The federal district court ruled that the books taught the religion of “secular humanism,” which the court noted had been listed as a religion in a footnote in
- In terms of underlying Religion Clause values, those who would permit non-coercive endorsements of religion say that religious liberty is the primary value and that it is preserved when no person is coerced to participate in a religious practice. They also point out that government may espouse other views—environmentalism, free-market capitalism—and thus forbidding it from espousing religion treats religion unequally, because religion like the other views is relevant to public life.
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
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Chapter Three. Free Exercise of Religion 251 results (showing 5 best matches)
- However, the rule of invalidation from and does not apply to all laws discriminating against religiously motivated conduct. In , 540 U.S. 712 (2004), the Court permitted a state to exclude an otherwise qualified college student from a state scholarship solely because he majored in theology from a “devotional perspective.” The majority found that “the state’s disfavor of religion” in denying funding was “far milder” than the criminal punishment in and the restriction on political participation in . The majority also said the denial of aid reflected no “hostility toward religion,” because scholarship recipients could still attend religious colleges and take religiously-influenced courses. The exclusion of theology and ministry students, the Court found, reflected a long American tradition opposing tax-financed funding for clergy.
- The argument that religious beliefs involve a divine power has undoubtedly played a major role historically in the development of religious freedom. But it also raises questions. Must exemptions for religion rely on the premise that there is a God—and if so, do they depend on the state adopting a particular religious belief? Adopting such a belief arguably violates the Establishment Clause if that clause is held to require government to be neutral toward religion (at least under some broad definitions of “neutrality”). Some defenders of accommodation reply that the government is not required to be indifferent to religion, because religion is a positive social good whose free exercise should be encouraged.
- A more sensible statement of the first factor might be that the burden removed from religion should be “significant” or “substantial.” In , 489 U.S. 1 (1989), a plurality of the Court said that some burdens on religion are too insubstantial to justify a statutory accommodation, at least one with negative effects on others. struck down a statutory sales-tax provision exempting sales of books and periodicals whose contents were “solely” religious. Justice Brennan’s plurality opinion said that, among other things, the sales tax imposed no “significant state-imposed deterrent to the free exercise of religion.” Not only had no religious publications claimed that paying the tax violated their religious tenets; in addition, a sales tax constitutes merely “a small fraction of the value of each sale and payable by the buyer.” The plurality here distinguished “a flat tax [such as a license fee] that ‘restrains ‘religious activity] in advance’ ” and thus might “stam[p] out missionary work.”
- In determining when a law is “neutral and generally applicable,” a court might find a law religion-neutral on its face—but it may also look behind the law’s face and find that the state intended to restrict religion in particular. In (p. 81), some justices bolstered their conclusion that a city’s ordinances against animal cruelty violated free exercise by quoting city councilmen’s public statements that Santeria and its practices were “abhorrent” and “an abomination to the Lord.” Examining the intent behind a facially neutral law is consistent with Equal Protection Clause decisions involving race discrimination (see , 429 U.S. 252 (1977)); but only a plurality in
- by reinstituting the compelling interest test against state and local governments in two specific contexts. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc , protects religious challenges to land use regulations—primarily zoning and historic preservation laws—and prison regulations. In both contexts, RLUIPA provides that substantial burdens on religion must be justified by a compelling interest whenever the burden on religion (1) affects interstate commerce or (2) is imposed in a program or activity that receives federal funding. In , 135 S. Ct. 853 (2015), the Court unanimously held that RLUIPA protected a Muslim inmate’s right to wear a half-inch beard pursuant to religious beliefs, because the state did not show the beard would cause security risks of contraband or prisoner misidentification.
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Chapter Five. Governmental Assistance to Religious Institutions and Activities 123 results (showing 5 best matches)
- Still another interpretation, sometimes advanced by equal-aid proponents, is that the Virginia assessment controversy is largely irrelevant to the original meaning of the First Amendment. While Virginia may have adopted a “no aid” position, proponents say, other states retained tax-supported aid to religion, and the debates surrounding the adoption of the Religion Clauses themselves say nothing to support the no-aid position.
- Another form of church-state “entanglement” also figured in and . The aid programs, the Court said, threatened to foster “political division along religious lines,” as various religious groups struggled to secure limited state funds. While political debate and division ordinarily are healthy and to be protected, the Court said, the framers worried about the hazards of religious conflict in politics. This notion of “political entanglement” reflects a version of the separation value, one that sees religious disagreements as especially volatile and dangerous to social peace and unity. It therefore seeks to keep politics secular and religion a private matter: not just leaving religious worship and teaching to non-governmental entities, but separating religious views even from general political debate. The concept of political divisiveness was widely criticized on the ground that it discriminates against religious viewpoints and denies the historic influence that religion has had on...
- In religious colleges, said, “there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education.” College students are generally “less impressionable and less susceptible to religious indoctrination” than younger students, and many religious colleges “are characterized by a high degree of academic freedom” for faculty and students.” The Catholic colleges in question had non-Catholic faculty and students; they did not require students to attend religious services; and even the required theology classes covered many religions and did not seek to proselytize students. The decreased risk of religious elements in the subsidized activities in turn decreased the need for “intensive government surveillance.” See also , 413 U.S. 734 (approving use of tax-free state bonds to finance secular buildings at religious colleges); , 426 U.S. 736 (1976) (approving inclusion of religious colleges in general state grants for “non-sectarian” uses).
- The Court strongly suggested that in order to avoid having the effect of advancing religion, the aid must be restricted to teaching in secular subjects—as was the case with the programs in . But the restrictions, the Court said, in turn created excessive church-state entanglement. Keeping religious teaching out of the subsidized classes would require a “comprehensive, discriminating, and continuing” surveillance because the schools, nearly all of them Roman Catholic, were pervaded with religious elements and teachers played a central role in maintaining the religious atmosphere.
- Second, the Court said that excluding students training for the ministry did not show hostility to religion, because “training for religious professions and training for secular professions are not fungible.” Funding of clergy, the majority said, was a matter where states had strong “antiestablishment interests,” given the long history of opposition to funding dating at least to the 1785 Virginia religious assessment (see pp. ). The majority also said that the scholarship program “goes a long way toward including religion in its benefits”: students could take courses taught from a religious perspective, even devotional theology courses, as long as they had a non-theology major. The state therefore should be permitted “play in the joints” to deny aid even if the Establishment Clause did not require it.
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Chapter Six. Religious Influences on Political Decision-Making 50 results (showing 5 best matches)
- To this point, our discussion has focused on situations in which the government directly promotes or restricts religious activity. Questions concerning explicit state-sponsored religious symbols or exercises, governmental aid to religious institutions, and prohibitions or restrictions on religious exercise make up the vast majority of the Supreme Court’s case law on the Religion Clauses. But religion and government interact in an even more pervasive way: through the countless issues of justice, morality, and social good that are the subject of political debate and legislation.
- By the second decade of the 21st century, the critical chorus against religion in politics hit something of a new crescendo. The religious “nones”—including atheists, agnostics, and those who were “spiritual” but uncommitted to any particular faith—grew in numbers and became more vocal. The prominence of “culture wars” issues like abortion, contraception, and LGBT rights could give the (erroneous) impression that public religion was simply a social conservative force; and on gay and lesbian rights, at least, social conservatism lost major ground, especially among young people. Even so, religious groups and values continued to play important roles in politics—in support of same-sex marriage as well as in opposition, and on other issues such as immigration, poverty, and race. Religion’s prominence in American politics is under pressure, but it seems very unlikely to disappear.
- The position that laws should not be based on religious motivations rests on the premises of church-state : that because religious differences are both intensely divisive and not necessary to the resolution of social questions, government should confine itself to secular reasons for acting. The arguments for permitting laws to be based on religious motivations appeal to notions of ; they claim that religiously based views should be considered in the political arena just like any other views. As the Court’s primary focus in religion cases has shifted from separation of church and state to equality between religion and non-religion, the case for striking down laws solely because of their religious motivations seems even weaker.
- On the subject of religion in political decision-making, the First Amendment case law has been relatively unimportant; the Supreme Court has issued few decisions. But political and legal theorists have carried on a lively discussion about the extent to which laws should be based on religious grounds. Many arguments for and against religion in politics are matters of prudence and political morality, not matters of constitutional law. They assert not how government is constitutionally required to behave, but how a good citizen or legislator should act in a free society.
- Conservative Protestants emerged from their political isolation in the 1970s; they organized to support policies restricting abortion and homosexuality, restoring school prayer, assisting the nation of Israel, and reducing government regulation and taxes. It was ironic that groups who had condemned the mixing of religion and politics during the civil rights era now mobilized voters and lobbied for legislation. But it also was ironic that some liberals condemned the Religious Right for mixing religion and politics, given the central role of religion to liberal causes such as civil rights.
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Preface to the Tenth Edition 2 results
- I thank numerous colleagues and friends for their input on the ideas reflected in this book, including Michael McConnell, who taught me the Religion Clauses of the First Amendment at the University of Chicago Law School. I thank Deans Tom Mengler and Rob Vischer and Associate Deans Neil Hamilton, Patrick Schiltz, Jerome Organ, and Joel Nichols at the University of St. Thomas School of Law for research and other support as I prepared the second and third editions. I also thank St. Thomas law students John Giesen and Muna Omar for their work on the third-edition index. My former colleagues at Cumberland Law School, William Ross, David Smolin, and Stephen Ware, read the manuscript of the first edition and gave helpful comments. So did my wife, Maureen Kane Berg, who is a careful thinker, a superb lawyer, a devoted mother, and a loving and supportive life partner.
- PREFACE TO THE THIRD EDITION
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Table of Contents 80 results (showing 5 best matches)
- C. Philosophy: Religion and Politics in a Pluralistic Liberal Democracy
- A. The European Background: Establishments, Restrictions on Religious Dissent, and Wars of Religion
- A. History: The Involvement of Religion in American Politics
- B. The Interpretation of the Religion Clauses: A Suggested Framework for Understanding
- Chapter Four. Religion in Government Institutions and Activities
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Index 146 results (showing 5 best matches)
Table of Cases 28 results (showing 5 best matches)
- Freedom from Religion Foundation v. McCallum, 261
- Hein v. Freedom from Religion Foundation, 235
- Valley Forge Christian College v. Americans United for Separation of Church and State, 235
- Witters v. State Comm’n for the Blind, 269
- Primate and Bishops’ Synod v. Church of the Holy Resurrection, 133
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Editorial Board 6 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in Law Michael E. Moritz College of Law, The Ohio State University
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus,
- President, William and Flora Hewlett Foundation
- A. BENJAMIN SPENCER
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- Publication Date: August 29th, 2016
- ISBN: 9781634602808
- Subject: Religion and Law
- Series: Nutshells
- Type: Overviews
- Description: Expert narrative describes and analyzes the religious freedom issues that have occupied the Supreme Court's attention in recent decades and exploded into public debate in recent years. The text explains principles and analyzes categories of cases using a framework based on three fundamental values: choice in religious matters, equality of treatment, and separation of church and state. Provides historical perspective and explains how the First Amendment's Establishment Clause and Free Exercise Clause interact. Also analyzes legislative provisions on religious freedom, which have caused widespread controversy in recent years, as well as state constitutional provisions. Useful for law students, practitioners, and interested laypersons.