Introduction to the Religion Clauses

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Establishment Clause

As stated in the Free Exercise Clause of the First Amendment, 
"Congress shall make no law respecting an establishment of religion"

The Establishment Clause

• prohibits the government from establishing a national religion
• forbids the government from involving itself in religion for the benefit of a specific religion
• is also applicable to state governments

The Free Exercise Clause

As stated in the Free Exercise Clause of the First Amendment, 
"Congress shall make no law ... prohibiting the free exercise [of religion]"

The Free Exercise Clause

• prohibits government from interfering with individuals' right to exercise religion freely
• uses the term "no law," though the government has occasionally imposed limits (i.e. human sacrifices)
• implies that while the freedom to believe is absolute, the ability to act on those freedoms may not be

http://www.firstamendmentschools.org/freedom/faq.aspx?id=12923

What is Religion?

As defined by the Merriam-Webster diction, religion is a personal set or institutionalized system of religious attitudes, beliefs, and practices.

Legal definition: The Supreme Court has interpreted religion to mean "a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that held by the God of those admittedly qualified for the exemption" (380 US 163).

Components of religion may include:

• creeds, doctrines, beliefs
• moral apparatus
• sacred text
• tradition
• adherents
• durability

http://www.merriam-webster.com/dictionary/religion

Background Information

Religious tests

• According to the Constitution, the inauguration of a President can include an "affirmation" of his faith rather than an "oath"
• The Constitution also states, "No religious test shall ever be required as a qualification of any office or public trust under the United States"

The "wall of separation"

• Thomas Jefferson wrote that the First Amendment constructed a "wall of separation between church and state"
• Jefferson believed religion was a personal matter, not a political one
• Jefferson was criticized by his opponents for the passage of the Virginia Statute for Religious Freedom (1786), which disestablished the Church of England in Virginia and guaranteed freedom of religion to all people 

http://en.wikipedia.org/wiki/Freedom_of_religion_in_the_United_States#Jehovah.27s_Witnesses

http://www.usconstitution.net/jeffwall.html

Minersville School District v. Gobitis (1940)

Background:

• Context of national struggle in defense of culture, liberty, allies, et al. contra fascism
• Pre-declaration to the war, but strong support for Allies; mandatory pledges motivated by religious fervor
• Minersville, Pennsylvania as 90% Catholic
• Lillian (12) and William (10) Gobitis were expelled from the public schools of Minersville, Pennsylvania for refusing to salute the flag
• The Gobitis family is associated with Jehovah's Witnesses
• In doctrines of Jehovah's Witnesses, saluting the flag is idolatry, which is worship of a graven image or false idol

Supreme Court decision:

• Nearly unanimous; 8-to-1 decision
• Public schools can compel students to salute the American flag and recite the Pledge of Allegiance
• Frankfurter writes that district's interest in promoting national unity is sufficient reason to require students to salute the flag
• Eventually overruled three years later in West Virginia State Board of Education v. Barnette

Justice Stone dissenting:

• Civil liberty guarantees individuals think and speak freely
• "The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them ... The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say..."

Judgment: Reversed

Key quotes:

• "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizens from the discharge of political responsibility." --Frankfurter (446)
• "We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security." --Frankfurter (447)

West Virginia State Board of Education v. Barnette (1943)

Background:

• After the Gobitis decision, the West Virginia state legislature passed a law stating that: as "a regular part of the program of activities in the public schools", all students "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly."
• Being Jehovah's Witnesses, the Barnette girls refused to take part in the mandatory salute, were expelled from school, and were not to be readmitted until they complied with the compulsory salute.
• The Barnette parents were also being threatened by prosecutors, who claimed that the parents could be charged with causing such delinquency.
• Appellees sought an injunction from the United States District Court to curb enforcement of these laws against Jehovah's Witnesses.
• The Board of Education “[alleged] that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the ‘due process’ and ‘equal protection’ clauses of the Fourteenth Amendment."

Supreme Court decision:

• The Supreme Court ruled 6-3 in favor of overturning Gobitis
• The Supreme Court found that mandating the salute of the flag was unconstitutional
• "Compulsory unification of opinion" was deemed unconstitutional
• Patriotism is better achieved through elevation of different opinion rather than compulsion and uniformity

Justice Black and Justice Douglas concurring:

• "Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men."

Justice Frankfurter dissenting:

• Frankfurter joined his majority opinion in Gobitis
• The court is overstepping its bounds
• People should not be able to break laws for religious reasons
• The Court is circumventing the democratic process by striking down state laws
• "The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which, except by leave of religious loyalties, is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws."  

Judgment: Reversed

Key Quotes:

• "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." --Jackson (456)
• "National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement." -- Jackson (457)
• "Compulsory unification of opinion achieves only the unanimity of the graveyard." -- Jackson (458)
• "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to other or to the State as those we deal with here, the price attitudes. When they are so harmless to other or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." --Jackson (458)

Study Questions

1. Should phrases like "In God We Trust" and "under God" be removed from currency and the pledge of allegiance? Is the inclusion of these phrases in violation of the separation of church and state?
2. Reflecting on Barnette, in what contexts should the interests of the State be tantamount to the interests of the individual? Is there a necessary tradeoff between achieving national unity and exercising one's right to civilly disobey to perform a symbolic gesture that is against one's beliefs?
3. "Compulsory unification of opinion achieves only the unanimity of the graveyard" (458). Are there exceptions to this? 

Additional Sources

Phil Donahue on Jehovah's Witnesses, Gobitis, and Barnette











Phil Donahue comments on the brutality Jehovah's Witnesses endured to remain true to their religious beliefs, as well as Justice Jackson's resounding message on the orthodoxy and "compulsory unification of opinion" and expression and he expands on his personal admiration for the degree of loyalty to one's parents and religious convictions. "What's American to you? What's courage to you?" Do we, as Americans, admire courage and loyalty enough to respect the opinion of the minority? 

Is religion dying in America?

The Internet and the availability of information, among other factors, are contributing to a decline in those who consider themselves religious. Is religion incompatible with the digital age? Can religion sustain the injuries caused by an increasing diversification of opinions and beliefs? 

Freedom of Religion
http://www.illinoisfirstamendmentcenter.com/religion.php

Objective coverage of church-state and religious liberty developments, with extensive links to primary sources
http://religionclause.blogspot.com/

Introduction to the Establishment Clause
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/estabinto.htm

Understanding the First Amendment's Religion Clauses
http://www.firstprinciplesjournal.com/articles.aspx?article=1485

Original Intent: The Meaning of the Religion Clauses
http://www.nrla.com/article/80/academic-resources/history-s-lessons/original-intent-the-meaning-of-the-religion-clauses