Making Sense of Church & State
Feb 23, 2016
Making Sense of Church &
State
“We must go elsewhere, therefore, to ascertain its
meaning” – Reynolds v. US (1878)
“A feature of the life of Asiatic & African people”
– Reynolds v. US (1878)
"one's views of his relations to his Creator, and to the obligations they impose of
reverence for his being and character, and of obedience to his will."
Davis v. Beason (1890)
“the general Principles of Christianity, in which
all those Sects were united . . . Now I will
avow, that I then believed, and now believe, that those
general Principles of Christianity, are as
eternal and immutable, as the Existence and
Attributes of God”
No Longer Content Specific
The state cannot “aid those religions based on a belief in the existence of
God as against those religions founded on
different beliefs. Torasco v. Watkins (1961)
2011 Dana Summer
Competition
Rick Perry’s . . . an evangelical Christian, a follower of Jesus Christ. Mitt Romney’s . . . not a Christian. Mormonism is not Christianity. It has always been considered a cult by the mainstream of Christianity.” –Robert Jeffress, First Baptist Dallas TX
“the general Principles of Christianity, in which all those Sects were united”
-- John Adams to Thomas Jefferson,1813
The Shape of American Protestantism
The Shape of American Religion “not primarily confession “certainly not territorial “And unlike any previous
church in Christendom, it has no official connection with a civil power.”
– Sidney Mead, Lively Experiment,103-104.
“The Morm
on Octopus”
“I Imagine it Must be a Perfect Paradise” Puck (Feb. 13, 1884)
“Mormonism must first show that it satisfies the American ideas of a church, and a system of religious faith, before it can demand of the
nation the protection due to religion. This it cannot do, for it is
not a church; it is not religion according to the American idea and
the United States constitution.”-- Rev. A.S. Bailey, “Anti-American Influences in Utah” (1888)
“Obedience to law, tolerance of opinion, loyalty to country – these are the principles which make the flag a sacred thing and this Republic immortal.” - Senator Albert J. Beverage (1907)
20th Century Religious Citizenship
In re: Reed Smoot (1904-07)
“Perhaps the most important question to ask a person of faith who seeks a political office, is
this: Does he share these American values: the
equality of human kind [tolerance], the obligation to serve one another [loyalty], and a steadfast commitment to liberty [obedience to
law]?”
-- Mitt Romney, “Faith in America” (12/6/07)
“emphatic faiths”
“Widening gyres” Application to the States More Diversity . . . & the Liberal State Organized Advocates
“government in this country . . . is
without power to prescribe . . . any
program of governmentally
sponsored religious activity. ”
-- ENGEL v. VITALE (1962)
Third Disestablishment
“the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” – Employment Div. v Smith (1990)
Neutrality
RFRA’s
Total # RFRA’s @ Year
While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. -- Carl H. Esbeck, 11 First
Amendment L.R. 1 (1212)
A Process
Disestablishment ~ Liberty
Public Money
Bible
Prayer
Proselytizing
School Curriculum
Pledge of Allegiance
Zoning
Public Displays
Native American Rites
10 Commandments
The Law as “Case” Law Balancing of
Interests Hermeneutical Questions &
Answers Evolutionary
Interpreting Compelling state interest Narrowly tailored
-- Sherbert v. Verner (1963)
“General Christianity . . . the cement of civil union, and
the essential support of legislation.”
-- Peoples v. Ruggles, 8 Johns. 290 (N.Y. 1811)
“many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith.”
Justice Black, Torasco v. Watkins, 1961