Religion in American Constitutionalism

In 1787, when the Constitutional Convention convened, the founders were concerned with the basic liberties entitled to every person (excluding non-white men) and sought to create a document to rule the newly established nation. Among the chief concerns of the colonists were the free exercise of religion and the opposition of an established state religion. In most college courses that analyze the Constitution, the professor will ask the students to debate whether or not the document supports slavery. This question can be answered via an interpretation of the exact language of the document. A more difficult and relevant question is whether or not the Constitution protects the rights of religions other than Christianity. The doctrine of free exercise of religion and religious tolerance in the 18th century is drastically different than it is today. Therefore, it is discriminatory to take an originalist interpretation of the Constitution because you are excluding the rights of groups who were not a part of America’s founding. I believe that the Constitution can protect the rights of all religions in the 21st century, but judicial precedent exhibits Christianity being given unfair legal protections.

People rarely practiced religions outside of Christian sects in colonial America. We read about the Puritans, Quakers, and Catholics escaping Europe in search of religious freedom. They created colonies that protected their rights to practice their faith and established cities, towns, and commonwealths devoted to that doctrine. Maryland passed a revolutionary act concerning religious freedom — the Maryland Toleration Act or Act Concerning Religion. It was passed in 1649 and guaranteed the ability for all believers of Jesus Christ to practice their own set of religious beliefs. On the surface, this act was extremely progressive, but still condemned those who denied Jesus Christ as the Lord and Savior to death. Evidently, this act severely persecuted and ostracized all non-Christians.

The Constitution gives more help to those who do not practice Christianity by guaranteeing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Leaps and bounds were made by the framers of the Constitution because of their nuanced views of religion, but in practice, the Constitution’s broad language leaves holes that were eventually filled with prejudice and restrictive dialogue. Neither Thomas Jefferson’s unorthodox theist practices nor assertion that there was a “wall of separation” between the state and church can protect religions from discrimination in the modern era. It is impossible to create a rigid separation between church and state because the Constitution promises no law “prohibiting the free exercise” of religion. Thus, requiring the state to make exemptions when a law and religious practice intersect would thereby obscure the “wall of separation” that Jefferson established. Many Americans understand common Christian practices and can issue exemptions when they see problems arise, but religions such as Islam, Judaism, Hinduism, and Indigenous systems of belief have been silenced and persecuted out of fear and a lack of understanding from the majority. Christianity has always been given preferential treatment in our society under the guise that its foundational rules paved the way to our core American values.

Right now, you can see the Ten Commandments on the Texas Capitol grounds. Its placement has been upheld in the Supreme Court. Found in Van Orden v. Perry, Justice Breyer believed that the Commandments have a “secular message as well.” He argued that this monument, when placed within the context of the history of Texas, does not constitute an abridgment of the Establishment Clause. It is easy for the current Supreme Court, composed of 9 people practicing either Judaism or Christianity, to see the context of the placement of this religious text on public grounds. All around us, we are saturated with Christian imagery and language that is innocuous enough to not warrant a direct violation of the establishment clause. On every piece of currency is “In God We Trust,” and every day in public school children will recite the words “under God” during the Pledge of Allegiance. While tradition is not grounds to allow for religious exemptions to be made, when its impact is neither significant nor causing harm, historical convention can stand. Justice Stevens, joined by Justice Ginsburg, writes that “the monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion.” The state can recognize and protect religion, but the placement of a Christian document in a public space is exclusionary. While only 4% of adult Texans are of a non-Christian faith and 18% unaffiliated, this leaves almost a quarter of the population who do not believe or subscribe to the religious ideology of the Ten Commandments. When you include one religious document, every sect and ideology should expect a space to honor their beliefs.  The state is not an arbiter of religious legitimacy, and allowing some religions and rejecting others presents grave issues of state-sponsored religious practices. In order to exclude no one, there should be no placement of any religious display devoid of a clear, secular purpose.  

Still, a statement like this presents Constitutional issues, as the government cannot endorse or deny a religion. By ruling that no one can place religious imagery on public grounds, we fall into a space of secularism that may appeal to some, but not all. The method to eradicate exclusion is now an instrument to exclude. The goal of the Free Exercise Clause and Establishment Clause is to allow for people to practice their religion freely and without fear of persecution by the government. Thus, it is the judiciary’s job to walk the tightrope in creating an inclusive society where people have the ability to practice or not practice any system of belief.  

Regardless of a religion’s majority in society, no law can be made establishing a state-sponsored religion. The Constitution is said to protect this, but judicial precedent has shown otherwise. In a tale of two cases, Sherbert v. Verner and Braunfeld v. Brown detail the inequality of religious exemptions in the Supreme Court. In the former case, a Christian person was given the freedom to exercise their religion by being able to refuse work on a Sunday due to her faith-based commitments. Braunfeld, a Jewish man, was unable to receive a similar exemption. In his case, Sunday Closing Laws forced him to close his stores even though he had no religious incentive to do so. Saturday is the day of Sabbath in the Jewish faith, so now he had to close on Saturday and Sunday. The court ruled that the effects were only “indirect” because they did not force him to work his day of worship.

Abiding by the doctrine of equality, all people should be given the same opportunities regardless of their religion, race, or class. Braunfeld had to face the choice of losing an extra day of business or having to sacrifice his religious freedom. While Sherbert was allowed to practice her religion unobstructed, Braunfeld was forced to make a costly decision. If we truly care about the freedom of religion that the Constitution promises, it is imperative that we protect those who do not practice the majoritarian religion. There is no perfect solution to provide for religious equality, but by acknowledging our country’s implicit bias, our future judges and justices will be aware of smaller religions’ rights and rule on them the same way they do Christianity.

In the 21st century, there is a rising population of non-Christian peoples in the United States, and they must be protected in the same way that Christians have been for centuries. All religions are different, and their cultural significance varies depending on the practice. By denying religious rights to a certain group, you may be rejecting their culture altogether. Growing up in a Christian household, my religion was not always a part of my identity. This is not true for all people, and that requires for sensitivity to be practiced toward people of all religions. America is not a Christian nation, but one composed of many beliefs. Tolerance is not enough; thus, the practice should be respect and a yearning to understand those who are different from you.



Categories: Law

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