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Religion and the Constitution

Religion and the Constitution: Volume 2: Establishment and Fairness

Kent Greenawalt
Copyright Date: 2008
Pages: 568
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    Religion and the Constitution
    Book Description:

    Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should students in public schools be allowed to organize devotional Bible readings and prayers on school property? Does reciting "under God" in the Pledge of Allegiance establish a preferred religion? What does the Constitution have to say about displays of religious symbols and messages on public property?Religion and the Constitutionpresents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.

    In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.

    Calling throughout for acknowledgment of the way religion gives meaning to people's lives,Religion and the Constitutionaims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.

    eISBN: 978-1-4008-2823-4
    Subjects: Law, Religion, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
  4. CHAPTER 1 Introduction
    (pp. 1-17)

    Two fundamental principles of American liberal democracy are that citizens should be able to freely practice their religion and that government should not establish any religion. This volume, the second of two devoted to an examination of these principles, concentrates on nonestablishment. The wording of the First Amendment of the federal Constitution that embodies that principle is “Congress shall make no law respecting an establishment of religion.” States have their own establishment clauses, and the federal provision now applies to states and localities.

    An ideal of nonestablishment relates closely to a belief in free exercise, and the fairness of treating...

  5. CHAPTER 2 History
    (pp. 18-39)

    This chapter reviews the history of the Establishment Clause through its possible application to the states via the Fourteenth Amendment. Volume 1 has discussed the historical background of both that clause and its companion, the Free Exercise Clause; here, we will concentrate on legal developments and political writings that particularly concern nonestablishment, and that tie nonestablishment to free exercise. The next chapter provides a sequential account of Supreme Court establishment doctrine, clarifying how later cases build on earlier cases, and designed to assist understanding of the chapters on specific topics that follow.

    In Western civilization through most of the eighteenth...

  6. CHAPTER 3 The Development of Doctrine and Its Significance
    (pp. 40-52)

    This chapter provides a summary account of the Supreme Court’s doctrinal development of the Establishment Clause. With chapter 1’s treatment of Establishment Clause values and their relation to equality, it sets the stage for the analytical discussion of particular issues in the chapters that follow. Along the way, I identify some major themes and tensions in approaches to the Establishment Clause, comment on a strong objection to the Supreme Court’s use of the metaphor of church and state, and sketch the differences between fundamental principles, tests of constitutionality, standards of judgment, and relevant factors.

    Not until 1947, inEverson v....

  7. CHAPTER 4 Government Aid to Religion and Promulgating Religious Doctrine
    (pp. 53-68)

    This chapter explains two related core aspects of the Establishment Clause: the government should not provide assistance to religious organizations to carry on their religious activities, and the government should not claim the truth of particular religious doctrines. We shall examine the basic grounding of these aspects, and look at their implications and controversial applications, as well as possible qualifications.

    As we saw in chapter 2, the classic established religion in Western history involved a state church, an official religion of the government. Short of designating, say, the Roman Catholic, Episcopalian, or Presbyterian Churchtheofficial religion, a state could...

  8. CHAPTER 5 Religious Words and Symbols in Public Places
    (pp. 69-90)

    One way a government may endorse or support particular religious ideas is by displaying signs with religious words or by using religious symbols. Were all a state’s official buildings to have inscribed “Jesus, our Redeemer,” or to display crosses in prominent places, that would recognize Christianity. The interesting, and constitutionally troublesome, issues arise in more ambiguous situations, in which it is unclear either whether words or symbols are religious or whether the state supports the religious message that they indisputably convey. The Supreme Court has decided six important cases involving religious messages in public places. We will examine those in...

  9. CHAPTER 6 Mild Endorsements and Promotions
    (pp. 91-102)

    As we have touched on in the previous chapter, federal and state governments in the United States engage in a number of practices that seem, at first glance, to endorse religion and religious activity. Our currency says “In God We Trust”; the Pledge of Allegiance includes the words “under God”; presidents declare days of Thanksgiving; legislatures pay chaplains and open sessions with prayers; and the Supreme Court commences its own sessions with the words “God Bless the United States and this Honorable Court.” What are we to make of these practices? They certainly appear to embody religious assumptions, even if...

  10. CHAPTER 7 Public Schools: Devotions
    (pp. 103-121)

    In this chapter and the next two, we shall look at religion and public schools. What schools may and may not do with respect to religion are important practical questions, and the Supreme Court’s most controversial decisions about the Establishment Clause have involved prayer and Bible reading in the schools. This chapter concentrates on those practices as well as that of taking a “moment of silence.” The immediately following chapter discusses teaching about religion, permitted, even encouraged, by the Court’s rhetoric. Chapter 9 takes up the problem of whether teaching about science and moral choices should make reference to religious...

  11. CHAPTER 8 Public Schools: Teaching about Religion
    (pp. 122-135)

    When the Supreme Court ruled in 1963 that devotional Bible reading in public schools was unconstitutional, it declared that the Constitution permits studying “comparative religion or the history of religion” and the Bible “for its literary and historic qualities.”¹ Five years later, reviewing an Arkansas statute that forbade teaching of the theory that mankind descended from a lower order of animals, the Court stated that “the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.”² Two decades later, the Court held invalid...

  12. CHAPTER 9 Public Schools: Teaching Whose Content Rests on Religious Views
    (pp. 136-156)

    In this chapter we turn from teaching about religion—as an acceptable alternative to teaching of religious truth—to teaching that is not explicitly religious but whose content is determined by religious views. Religious views could determine what is not taught as well as what is taught. To take a (now) fatuous example, if a teacher did not mention religion but asserted that the earth was the center of the planetary system, his religious view would be determining the teaching if his only, or primary, reason for his belief about the place of the earth was his reading of the...

  13. CHAPTER 10 Establishment Clause Tests and Standards
    (pp. 157-193)

    Having examined a number of specific problems in applying the Establishment Clause, we are ready to pause and review the standards that Supreme Court justices have used to resolve those problems. This review can provide a dimension of depth regarding the constitutional issues we have considered so far, and it introduces the controversial subjects that lie ahead, the two most important of which are the limits of accommodation and the permissibility of aid that goes to religious groups but is granted according to nonreligious criteria (such as the provision of hospital or educational services).

    The various approaches that members of...

  14. CHAPTER 11 Equal Facilities and Freedom of Speech
    (pp. 194-206)

    This chapter explores the subject of equal treatment of religious and nonreligious endeavors from the perspective of freedom of speech guaranteed by the Free Speech Clause. With the exception of the Ku Klux Klan request to place a cross on Ohio’s Capitol Square,¹ discussed in chapter 5, we have thus far paid little attention to this piece of the puzzle of constitutional doctrine. The First Amendment’s speech clause has been interpreted to forbid many classifications based on the content of communications; when the government makes available a public forum for private communication, it cannot, in general, bar worship and religious...

  15. CHAPTER 12 Chaplains in the Military and in Prison
    (pp. 207-220)

    Federal and state governments provide chaplains and special opportunities to worship within the armed services and within prisons.¹ These practices may seem hard to square with a principle that the government should not promote religion, and they raise significant constitutional questions. If they appear at odds with principles we have thus far accepted, should we conclude that the government should cease employing chaplains, should we abandon the principles that seem to condemn them, or may we discern a reconciling strategy that allows us to embrace both the principles and the practice?

    The history of chaplains for the military is as...

  16. CHAPTER 13 Religious Groups Exercising Government Power
    (pp. 221-239)

    A common feature of traditional established churches was that religious leaders occupied government positions or directly exercised authority over matters that modern states place within the domain of civil government, or both. Supreme Court justices and scholars agree that assigning government power to religious leaders or groups violates the Establishment Clause. According to the threefoldLemontest of unconstitutionality, this is one form of entanglement, a form that needs to be distinguished from administrative entanglement and political divisiveness. In two Supreme Court cases this kind of entanglement has played an important part. We shall look at those cases and their...

  17. CHAPTER 14 Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance
    (pp. 240-278)

    This chapter addresses two complex problems regarding ordinary secular law and Jewish law. The analysis touches questions of accommodation and concerns about establishment. In pursuing various nuances, we can see just how debatable are some connections between civil law and religious practice. Civil law in the United States ordinarily does not help to enforce religious standards for behavior, yet the law of some American states does so with respect to certain observances of Orthodox and Conservative Judaism, with effects extending over the entire jurisdiction, not just one geographical locality. Some states enforce kosher requirements, to which Orthodox and some Conservative...

  18. CHAPTER 15 Tax Exemptions and Deductions
    (pp. 279-297)

    Religious organizations benefit from various tax exemptions and deductions, granted federal, state, and local levels. Perhaps most important, churches and other places of worship are exempt from local property taxes, a privilege guaranteed in state constitutions and statutes. Religious organizations need not pay income tax on income connected to their religious functions, and they are also relieved from federal unemployment and social security taxes. Relief is also accorded in the form of deductions from taxable income for those who contribute to churches and other religious organizations. These deductions benefit the organizations indirectly. People in high tax brackets who live in...

  19. CHAPTER 16 Religion and the Exemption Strategy
    (pp. 298-335)

    Among the most troubling questions about the Free Exercise and Establishment Clauses are when exemptions from ordinary regulations are warranted and how any exemptions, and other benefits going to religious groups, should be formulated. Religious individuals or groups may want badly to engage in activities that legislators have reasons generally to forbid. For example, legislators believe they should forbid the use of hallucinogenic drugs, including peyote, traditionally used by the Native American Church; church members regard peyote as a crucial element of their religious ceremonies. Conversely, some religious individuals believe they should not perform acts that a legislature designs as...

  20. CHAPTER 17 Limits of Accommodation
    (pp. 336-351)

    Among the most vexed questions in the law of the religion clauses is when a legal measure that might otherwise be justified as an accommodation to free exercise is instead a forbidden establishment of religion. The chapters in the free exercise volume as well as those in this volume up to this point provide some idea just how complex this question can be. We now tackle it head on. Scholars have fairly observed that the Supreme Court has given us no theory, or no tenable theory, for drawing the line between permissible accommodation and impermissible establishment. We will look at...

  21. CHAPTER 18 Financial Support to Religious Institutions
    (pp. 352-384)

    Many major problems about Establishment Clause law involve public funding of endeavors undertaken by religious organizations—such as hospitals, schools, adoption agencies, and drug rehabilitation centers. This chapter identifies some central issues about funding, before turning to Supreme Court decisions regarding services other than schools, and controversial aspects of President George W. Bush’s “faith-based initiative” for social services. The following chapter concentrates on the complex topic of aid to private religious schools.

    The modern Supreme Court’s decisions about funding have started from the premise that the government should not give financial support to religious organizations to pursue dominantly religious objectives....

  22. CHAPTER 19 Aid to Religious Schools
    (pp. 385-432)

    The controversial, important subject of aid to religious schools has given rise to far more Supreme Court cases than any other establishment issue. Many citizens have been upset by the Court’s rulings against prayer and Bible reading in public schools, but national life would not be greatly affected if those schools started the day with a prayer. By contrast, a great deal of money is potentially at stake over aid to private schools, and were states to provide generous aid, that could significantly affect the education a large portion of our nation’s children receive.

    Forsomeconceptual purposes, aid to...

  23. CHAPTER 20 Religion Clause Skepticism
    (pp. 433-450)

    This chapter and the next four differ from their predecessors. Rather than concentrating on specific topics about free exercise and nonestablishment, they consider more general, theoretical questions. Here, we shall focus on three kinds of skeptical responses to how courts determine the coverage of the Free Exercise and Establishment clauses. My ambition in this chapter is a modest one, to suggest that certain skeptical views about religious clause adjudication are not convincing. Although I make various comments about positive approaches to decisions about free exercise and nonestablishment, I do not present a comprehensive theory that I claim is immune from...

  24. CHAPTER 21 Alternative Approaches
    (pp. 451-479)

    We have reviewed and rejected various skeptical approaches to the law of the religion clauses. In this chapter, we appraise three comprehensive positive approaches: (1) that governments should avoid influencing choices about religion insofar as possible; (2) that governments should be relatively free to engage in symbolic displays but should observe a strict institutional separation from religious organizations; and (3) that governments should respect “equal liberty,” comprised of principles of nondiscrimination, nonpreferentialism, and broad liberty. Each of these approaches has been proposed by one or more prominent scholars of the religion clauses; each reflects to some degree past or recent...

  25. CHAPTER 22 Justifications for the Religion Clauses
    (pp. 480-496)

    In this volume and its companion on free exercise we have explored questions about how free exercise and nonestablishment of religion should be understood, in respect to a range of specific problems, considering values that underlie the religion clauses, but without fitting these values into an overarching theory. In the next three chapters we will engage more fully with the underlying issue of what problems, if any, arise when citizens and officials justify their actions on the grounds of religion. This chapter addresses the specific inquiry whether religious justifications have any place when citizens and officials explain and defend the...

  26. CHAPTER 23 Religiously Based Judgments and Religious Discourse in Political Life
    (pp. 497-524)

    This chapter and the next explore related subjects that lie at the outer boundaries of the restraints the Establishment Clause imposes on governments or concern issues of political philosophy that reach beyond constitutional limitations. In the following chapter we will consider a constitutional question we have not yet directly addressed: when the law enforces a moral judgment that is grounded squarely on religious sentiments, does that violate the Establishment Clause? No one doubts that laws against killing and stealing are all right, althoughone reasonthat some people think these acts are wrong is because the Ten Commandments forbid them....

  27. CHAPTER 24 Legal Enforcement of Religion-Based Morality
    (pp. 525-537)

    This chapter explores the implications for constitutional law of the broader subject we considered in the previous chapter—legislative and executive policies that are grounded in religious premises. At the end of the day, these implications are very slight if one is interested in what measures courts should hold invalid, or so I shall argue. But the analysis leading to this conclusion can help dispel confusions about the relation between political rhetoric and judicially enforceable constitutional law. It can also enable those who would like the courts to play a more active role to see exactly how they differ from...

  28. CHAPTER 25 Conclusion
    (pp. 538-544)

    In our final five chapters, we have moved from discrete topics of legal significance to more general theories about the scope of the Free Exercise and Establishment clauses and about how far religious convictions should figure in the politics of liberal democracies. These chapters may serve partly as a reminder that no sharp boundary line separates constitutional law from related ideas in political philosophy that do not generate legal constraints. The chapters also raise an implicit question about how much theorizing may be done about liberal democracies in gross, and how far persuasive resolutions depend on the history, culture, and...

  29. INDEX
    (pp. 545-555)