The Supreme Court’s Changing Stance on Religious Freedom

Several current cases may well result in greater latitude; an analysis by Samuel Ericsson.

My son Ryan and I build scale models together, following step-by-step directions to the letter and producing a replica that looks just like—well, almost—the picture on the box. In our computer age, you can build a model of almost anything, even if it exists only in the imagination of the designer. However, there is one famous image in the collective American consciousness that has defied model makers for 200 years: it is the “wall of separation” between church and state.

That may change this year, however, as the U.S. Supreme Court considers a record ten cases involving the separation of church and state. The cases deal with religious rights issues, including questions of religious expression in public life, but none of the cases relates to abortion, infanticide, or euthanasia.

The shape of a new church-and-state model is not fully discernible yet. But recent decisions point toward greater accommodation of religious expression in American life. The religion clauses of the First Amendment to the U.S. Constitution say: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The words appear so simple. Yet there is a growing concern—and abundant confusion—as to just what those 16 words mean.

The Supreme Court has long recognized that tensions exist between the two clauses, known as the “establishment clause” and the “free exercise clause.” In the first 150 years following the adoption of the Bill of Rights, the high court reviewed only four cases involving these clauses. The ten church-and-state cases on the Court’s docket this year signal that significant changes have been occurring. In order to understand the current tension better, and the changes that have brought it about, we need to examine American history, much of which has been forgotten or misconstrued.

Three God-Ordained Institutions

The Bible teaches that God has ordained three primary institutions for society: the family, the church, and the government. Since God designed and established these institutions, each is intended for our use and for his glory. But sin corrupts institutions as well as men. And so these institutions often compete for turf, intruding into the domain of the others.

Our perception of how these institutions should relate to one another will determine how we respond to issues in the church-and-state arena. If our perception is askew, the results may be devastating.

Some argue that the ideal model is one of “absolute separation” of church and state. That model is flawed because it fails to acknowledge that government, church, and family must coexist and interrelate. Society is best served when relationships and interactions among the three institutions are harmonious and in balance.

The absolute separation mindset leads inevitably to polarization. Soon we have two camps that are deeply antagonistic to each other. The family, as the weakest of the three, often becomes the rope in a tug-of-war between the two stronger institutions of church and state. Strident separationists have spoken up vigorously in recent years, yet their model has never been favored in America, nor could it work in practice.

Another option for a church-state-family model places one institution in a dominant role over the others. Advocates of this approach favor it only so long as their own institution is on top.

Early in our nation’s history, the church in many cases was given a dominant position. At least eight states were colonized in part by people fleeing religious persecution. What often is forgotten is that in some colonies, and even some states, the persecuted became the persecutors once they gained a dominant position.

In 1606, for example, the Virginia colony’s charter made the practice of Catholicism and Quakerism capital crimes. And Boston, founded by Puritans fleeing persecution in England, banished religious dissidents like Baptist Roger Williams. They even hanged some banished Quakers who dared to return.

Patrick Henry, a lawyer, represented many Baptist preachers in northern Virginia who were thrown in jail about the time of the American Revolution. The clergymen were jailed for refusing to get a license to preach from the official state church, the Episcopal church, which also demanded a tithe from the Baptists.

Nine of the 13 original colonies recognized official state churches. After the Revolutionary War, the original 13 states did not seek to disestablish the five state churches that remained even after the U.S. Constitution was adopted. The official state church model finally vanished from the American scene with the Congregational church giving up its preferred status in Massachusetts in 1832.

From Statehood To Nationhood

The Civil War settled the question of whether we were a nation united or merely a conglomeration of separate states. The Thirteenth Amendment struck down slavery, and the Fourteenth Amendment, passed in 1868, sought to assure procedural equality for all Americans through our legal system. As America moved into the twentieth century with the Industrial Revolution at full speed, factors such as our increasing mobility and exposure to national communications media began to mold us into a nation of Americans. As we became less regionalized and more Americanized, our political, social, and economic institutions became more centralized.

Law also became more centralized and standardized as the Supreme Court sought to adjust to the societal changes that were taking place. The Court began to focus on the “liberty” portion of the due process clause of the Fourteenth Amendment. The high court was asking which liberties are so fundamental to each American that no state may take them away without proper legal process. The logical place to find such a list, of course, was in the Bill of Rights. Over the past 60 years, the Supreme Court nationalized basic freedoms such as those of speech, press, and assembly, declaring that all levels of government—federal, state, and local—may not tread on these basic rights.

The Supreme Court began to focus on the religion clauses in 1941, declaring that the rights we enjoy under the First Amendment’s free exercise clause shall not vary from state to state. In 1947, the Court declared the same to be true for the establishment clause of the First Amendment. Prior to these key decisions, each state had free rein, restrained only by its state constitution, to develop its own law regarding church and state. Some states were more tolerant, while others clearly preferred certain religious labels.

Federal court judges soon found themselves with their hands full as they began to apply federal First Amendment standards to relationships that had developed over decades and even centuries between state and local governments and religious institutions. The results have not always been consistent, and changes have not always been eagerly embraced. Nonetheless, church-and-state law had entered a new era by 1947.

The Supreme Court as well saw an increase in the number of church-and-state cases following its 1941 and 1947 rulings. Those cases generally fall into three areas: government aid to religion, public acknowledgement of religion, and claims of individuals or religious groups to be free from state regulation. The first two categories are considered establishment clause cases, while the last category comes within the orbit of the free exercise clause.

The Elusive Wall

In the 1947 case holding that all levels of government are bound by the First Amendment’s establishment clause, Justice Hugo Black wrote the famous lines that soon became the standard for examining future cases. Black introduced the “wall of separation” metaphor in the most frequently quoted paragraph of any Supreme Court religion case:

“The First Amendment means at least this: neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.… No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they might be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’ … The First Amendment has erected a wall between church and state. The wall must be kept high and impregnable. We could not approve the slightest breach.”

From the outset, however, the wall was neither high nor impregnable. In the case that introduced the “wall” metaphor, Justice Black did not find that wall breached by allowing public funds to be used to pay transportation costs of children enrolled in church schools.

The church-and-state model that the Supreme Court has based its decisions on over the past 40 years recognizes areas of shared responsibility among three institutions: family, church, and government. Each of these institutions has exclusive areas of responsibility. For example, the family alone has the right to determine its own size; the state has the right to bear the sword and establish a police force; and the church should be left free to determine its own doctrine and choose its own leaders.

In some areas, two institutions may share jurisdiction. For example, the family and the church have a shared responsibility for evangelism and spiritual nurture of the faithful. The government does not share that responsibility. However, on issues such as health requirements and child labor laws, family and state interact.

There is a cluster of issues in which all three institutions claim a legitimate interest. Those issues define our sense of community—that which we have in common unity, such as education, morals, values, civil and human rights. It is in this cluster of issues where the conflict over turf and influence heats up most intensely.

In large part, the Supreme Court’s decisions on religion in the past four decades have tried to recognize that the three God-ordained institutions are to remain separate, even though they inevitably interact with one another on many issues. There are several guidelines or tests the Court applies to make this model work. These tests usually make good sense.

The First Test

In cases involving the free exercise clause, the Court requires an individual or group to show a sincerely held religious belief that is burdened or infringed upon by government action. Once these facts are established, the government must justify its action by proving that it has a “compelling state interest” that outweighs religious belief or exercise.

A classic free-exercise case is before the Supreme Court this term, pitting the Ten Commandments against the First Amendment in an interesting duel. The case involves Frances Quaring, a Nebraska woman who refuses to be photographed. She holds to a literal reading of the Second Commandment, which forbids any “graven image or likeness.” The state of Nebraska refuses to give her a driver’s license until she submits to a photograph.

The sincerity of Quaring’s belief is not an issue in this case. She does not own a television, has no family photographs, and will not allow into her home any pictures, drawings, or graphic designs based on any animal or other living creature.

Lower federal courts agreed with Quaring, saying Nebraska must make an exception to the photo requirement in order to respect her religious principle. They reasoned that such exceptions will occur so infrequently that they will not unduly burden the system. But Nebraska argues that obtaining a driver’s license is a privilege, not a right, so people like Quaring may properly be asked to choose between the inconvenience of not having a driver’s license and the stress of behaving contrary to their beliefs. It seems likely that the high court will find the state of Nebraska to have the weaker argument, and will require the state to accommodate Quaring’s beliefs.

The Three-Part Test

Most religion cases arriving at the Supreme Court’s counter involve the establishment clause. Justice Black’s use of Thomas Jefferson’s “wall of separation” metaphor may have revived an old phrase, but it has not been very helpful in making decisions. Instead, the test applied most consistently by the high court in deciding establishment clause cases is known as the “three-part test.”

The first question it poses is whether a law or state action has a secular purpose. The second test is whether the primary effect of the action either advances or inhibits religion. The third prong is whether the law or state action results in excessive entanglement between religion and government.

The results of this test are somewhat ambivalent, because the Supreme Court has ignored the test in a number of key cases where tradition and notions of historical accommodation won out. In 1983, the Court upheld a Nebraska tradition of paying for a chaplain to serve in its state legislature. It would seem that programs where the state pays the salary of a chaplain whose primary function is religious would violate all three prongs of the three-part test. Yet the Court did not mention the test at all in reaching its decision, noting that the “unique history” of the chaplaincy program preserved its constitutionality.

The historical exception approach may be one way the Court will seek to accommodate traditional activities that are not generally perceived by Americans as a breach of the “wall of separation.”

Accommodation: Model Of The Future?

The first clear signal of a shift toward more accommodation of religion came in the landmark case of Widmar v. Vincent, decided by the Court in 1981. The case involved a group of Christian students at the University of Missouri-Kansas City that was denied the right to meet on campus for a student-initiated and student-led Bible study. The university claimed that the wall of separation prevented these students from enjoying the same privileges as all other student groups, including a gay group that had won the right to meet by court order. The Christian group, Cornerstone, sued, and the Supreme Court ruled that public universities may not discriminate on the basis of the religious content of speech if it allows other groups to meet.

Widmar sent this signal: Religion may not be denigrated to second-class status in the public forum of ideas. Religion is to be on an equal footing as long as the state does not put its official imprimatur on a particular brand of religion. Thus, after more than three decades of focusing on separation, the Court began to consider concepts of accommodation and equal treatment.

This shift was apparent last year in a Supreme Court case involving a city-sponsored nativity scene in Pawtucket, Rhode Island. The crèche was displayed each year along with a variety of other exhibits, including a Santa Claus house and a Christmas tree. In a 5-to-4 decision, the Court virtually dismantled the “high and impregnable” wall of an earlier era. Chief Justice Warren Burger wrote, “Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

Rejecting a rigid, literal approach to the separation of church and state, the Court ruled, “In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court.”

The strongest signal the Court sent in this case may be Burger’s conviction that the U.S. Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”

Which Model Suits Today’s Docket?

The establishment clause cases that face the Court this term include the following:

• Observing The Sabbath

May the state of Connecticut prevent a private employer from firing an employee who refuses to work on the Sabbath? This ruling will be a close one, but employees have done well in discrimination cases in recent years. Their Sabbath rights probably will continue to be accommodated, unless the Court concludes that this discriminates against the nonreligious.

• Equal Access

Must a public high school in Williamsport, Pennsylvania, deny equal access to a small, voluntary, student-initiated, and student-led group wishing to meet for religious speech during an activity period? The Court already has ruled that public universities must not deny equal access. Most Court observers and scholars believe equal access will be extended to secondary schools.

• Silent Prayer In School

May the state of Alabama initiate a school-sponsored and teacher-led moment of silent prayer and meditation? This differs from the prayer cases of the early 1960s where the state provided the religious content. Here the state and its teachers merely supervise the place and time in which religious thoughts may take place. Most Court observers believe this accommodation will be allowed.

• Nativity Scene On Public Land

Must a city allow a nativity scene to be displayed if it does not want one? Last term, the Court held that a city may do so. But the board of trustees of the Village of Scarsdale, New York, says that city prefers to outlaw its crèche. The issue may hinge on whether a city can say “no” to all forms of symbolic speech in its parks, such as billboards and posters. One thing appears certain: a city cannot discriminate against religious content in posters, billboards, or displays once it allows symbolic speech into its parks. The Court may well conclude that symbolic speech is a permissive, not a mandatory, accommodation, but that all such speech must be given equal play.

• Wages For Service To The Lord

Must a religious organization engaged in commercial business pay the minimum wage to its workers, who view their jobs as “service to the Lord”? Many exceptions to minimum wage laws already are allowed, and the Supreme Court may conclude that this exception is legitimate as well.

• Aid To A Church School

May a public school district pay the salary of a teacher who teaches “secular subjects” in a classroom owned by a church school but rented out to the public school during the class period? This case is too close to call. In the past, when the issue has involved tax funds, the Court usually has said “no” to the religious group involved.

The thread that may tie future decisions together probably will consist of accommodation and equal access. A benevolent neutrality that gives religion equal accommodation in the public square is perceived by many as balanced and proper. If President Reagan has an opportunity to appoint new justices to the Supreme Court, accommodation probably will become more firmly entrenched in future church-and-state cases. Five of the nine justices are past 75 years of age. If any should retire, Reagan would appoint justices whose philosophy in the church-and-state arena is more inclined toward moderation and balanced treatment than toward strict separation. That mindset prevails in the thinking of Reagan’s only Supreme Court appointment to date, Sandra Day O’Connor.

An Evangelical Perspective

Perhaps the Court’s church-and-state rulings hit closest to home when they affect religious expression in public schools. Advocates of a school prayer amendment to the U.S. Constitution like to accuse the Supreme Court of expelling God from the public schools. However, the high court rulings are not as sinister as some suggest.

In a number of decisions, the Court has upheld the constitutionality of religious rights in the educational arena. In 1983 the Court upheld a state law allowing tax deductions for certain school expenses, including tuition, paid by parents for children in both public and private schools. In 1981 the Court ruled that public universities must give students who wish to meet for religious purposes access to facilities on an equal basis with other student organizations. Over the past three decades, the Court has ruled that public schools may accommodate the spiritual needs of children by adjusting school schedules to allow participation in religious holidays, released-time religious instruction, and other religious observances.

The rulings that receive the most attention, however, are the famous school-prayer decisions of 1962 and 1963. In those cases, the Court said states could not compose prayers for public-school children. It also ruled that state-initiated, school-sponsored, and teacher-led devotional exercises during the public-school day violate the establishment clause of the First Amendment. In other words, teachers may not act as ministers or priests in the public-school classroom. Although those rulings have been misinterpreted and misapplied in many public school districts, the Court did not make it illegal for students to pray or read the Bible in a public school.

In most cases, the Court has paid serious heed to the integrity of the church as an institution distinct from government and fully capable of ensuring spiritual nurture for people of faith, without federal assistance. The Court’s current docket reflects avid interest in refining a model of church and state that will balance the overlapping spheres of government, church, and family. The high court’s decisions, by and large, reflect the priorities of our society. By exercising the wealth of religious liberties we enjoy, Christians will help preserve them.

The Supreme Court’s model-making task is an intricate one, and the justices must devise their own “directions” as they proceed. Christians can help by doing their own modeling, bringing their faith to bear on every aspect of their lives and not attempting to return to the days of established “state” churches. Since there are no limitations on prayer, petitioning God on behalf of the nine Supreme Court justices is a right that we need to exercise. That is one right no court or government can ever take away from us.

Ericsson directs the Washington, D.C., office of the Christian Legal Society and coordinates its Center for Law and Religious Freedom. He serves as lead counsel for the Williamsport, Pennsylvania, equal-access case, accepted for review by the U.S. Supreme Court later this year. He is a graduate of Harvard Law School.

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