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Politics and Religion


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Title: Politics and Religion

Politics and Religion
  • Dr. Troy Gibson

  • I. Course Introduction
  • A. Why study religion and politics?
  • Relevance in Political History (Western
  • Relevance in American History
  • Relevance in Political Philosophy
  • Relevance in Political Debate
  • Relevance in Political Outcomes (parties, policy,
    voting, elections, groups, etc.)
  • Applies to us all? The political question, then,
    is not, How does religion relate to non-religious
    politics? but rather, What kind of politicswhat
    stances, arguments, policies, and principlesflow
    from different religions or ways of understanding
    the world and life, whether they are older
    (traditional) or newer religions? We will not
    understand the political dynamics of the
    contemporary world until we recognize the
    religiousness of all peoples and cultures and the
    differences among their basic assumptions about
    human flourishing and their diverse impacts on
    political and economic developments.
  • Someone may argue that religion ought not be
    relevant, but it would be mistaken or naïve to
    say that it is not relevant.

  • The place of politics and religion in America
    (comparatively speaking). Neither Iran, England,
    France, or Sweden. No homework on Wednesday
    nights government offices closed on Sundays out
    on Easter and Christmas. Peter Berge If India
    is the most religious country on our planet, and
    Sweden is the least religious, America is a land
    of Indians ruled by Swedes. Instead, we have a
    sort of permissive establishment of religion
    here, where the major religion is accommodated in
    public life (not oppressive, not prescriptive,
    not entirely secular).
  • C. How will we study RP? Where do we limit the
    study? Course will focus mostly on most
    dominant religious groups, movements, events,
    trends, in American political history and

  • II. But What about the Secularization thesis?
  • A. Definition Religious belief and practice is
    (and ought to be) decreasing in relevance
    acceptance as human progress is advanced through
    modernization and globalization.
  • B. Evidence Religion is safe and irrelevant
  • Decline of religiosity (in Europe, at least)
  • Rise of dualism (division of sacred/secular
    airtight categories) and the privatization/secular
    ization of Christianity (America) paradigm
    shift Christian and religious categories, once
    taken for granted, no longer welcome as lenses
    through which we must interpret the world from
    1950-today America moved from dualism towards
    postmodernism. (Example Bible-theft).
  • How pervasive? Can you imagine a research
    program or department whos whole mission was to
    examine the phenomenon of secularism?
  • Responses to naturalism by Christians, a new
    protestantism growth in subjective faith, growth
    in experiential faith growth in relative faith
    growth in spiritualism decline of traditionalism
    and growth in secular marketing strategies (p. 15

  • C. Causes of Secularization
  • Dualism in Theology (Aquinas division of Nature
    and Grace)
  • Dualism in Philosophy - Especially articulated in
    the thought of Immanuel Kant, we divide
    knowledge, truth, and all activity into
    revelation vs reason, science vs faith, fact vs
    value, etc. This, we say, is the nature of
    knowledge and we add that matters of faith,
    values, and revelation (religion) are of private
    use only while matters of fact, science, and
    reason are of public use.
  • Great Awakenings identification of Christian
    life with individual experience, not testable
    truth claims and corporate confessions of faith.
  • Surrender of the fundamentalists (1900-1970)
  • 5. Rise of the secular left (1850-1950) - This
    group eventually gained control of the
    public/social institutions and successfully
    argued that anyone who wants to play with them
    must use their ball (secular or naturalistic
    assumptions about the world). Successfully
    changed basic understandings of science,
    education at all levels, public philosophy,
    church-state doctrine, model of personhood (from
    the soul to the psychologized self), and
    journalism. Notice interest was not a neutral
    public space, but a new moral order (and toppling
    of the old Protestant one). Next generation gave
    us the 1960s revolutions and postmodernism.

  • 6. Growth of Modern Government Government was
    once limited to commerce and civil order and
    the church focused on charity and inculcation of
    goodness and truth. But when govt expanded its
    role (welfare-regulatory state), it pushed
    religion to those areas not important enough to
    have received the help/control of government
    (margins of public life).
  • 7. Public Education For secular elites, the
    goal was to create universal centers of
    intellectual reconstruction, where successive
    generations are trained exclusively in secular
    methods and eventually secular perspectives on.
    For protestants, it was to help the poor and (and
    in some cases, undermine catholic education).
    Result secular thinking and secular viewpoints
    training over 90 of the last few generations.
    The 1960s was not accident. (Read p. 133 of

  • D. Challenges to secularization (in addition to
    the U.S. itself) (1) birth, marriage,
    immigration patterns in U.S. and especially
    Europe (2) stable beliefs and practice of
    evangelicals despite economic incline regular
    church attendance in U.S. well over 50 (3)
    growth of Islam and Christianity worldwide (4)
    return of theology in American evangelicalism
    (SBC 30 ministers Reformed) (5) Argument that
    secularization is not non-religious Some
    religions are traditional, some are new, and
    among the new religions are those guided by a
    secular faith, a belief system held by
    communities whose gods--which they do not
    acknowledge as godsare the idols of human
    autonomy, scientific rationality, technological
    progress, the nation, economic growth, a
    communist future, or sheer power in itself (6)
    argument that religion persists because it, and
    not science, satisfies a basic human need, the
    desire to explain and existence/life as
    meaningful (7) resurgence of religion in public
    life in the name of government neutrality (result
    of postmodernism)

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  • III. Worldview and Presuppositions
  • A. What is religion? A lot of the confusion
    about the role of religion in politics comes from
    our assumptions about religion, or how to define
    it. If religion means traditional rituals or
    practices of organized faith communities, then
    not all are religious (popular view in the West).
    If religion means adherence (wittingly or
    otherwise) to a philosophical system, basic
    beliefs about what is ultimately real, true,
    right, valuable, and meaningful, then everyone is
    religious i.e., we all have a worldview.
  • B. 7 Worldview Questions from James Sire
  • What is prime reality?
  • What is the nature of external reality?
  • What is a human being?
  • What happens at death?
  • Why/how is it possible to know anything at all?
  • How do know right from wrong?
  • What is the meaning of human history?

  • C. If the worldview concept is correct
    (everyones got one), then one could never
    divorce religion from politics. Worldviews do
    not cloud our judgment, they determine our
    judgment. There is no free-thinker, cant
    judge religion except on the basis of another
    religion GK Chesterton and the universal reality
    of dogmatism. AND. If politics is about the
    authoritative allocation of values (choosing
    which values to legislate), then politics
    necessarily is informed by worldview convictions
    about what values are best for society.

  • IV. Religious Arguments in Public Discourse (Draw
    2 Circles Religion/Politics
  • 1. Simple argument
  • Different beliefs about God
  • Differences may lead to violence
  • With no certainty about religion, avoid religion
    in public space
  • John Rawls and the doctrine of Public Reason
  • Problem How can people committed to different
    worldviews live/work 2gether as equals in a fair
    peaceful society? Answer Limit reasons to only
    those premises held in common by all
    (overlapping) and assume all citizens
    participate from behind a veil of ignorance,
    where no one knows what status they will hold in
    life. Result? Just society and possibility of
    ongoing conversation in public.

  • 3. Natural Law - In politics, we use science and
    reason (accessible to all by Gods natural
    revelation). In religion, we use special
    revelation (word of God). Robert George agrees
    that religious reasons must not be used as
    political reasons. He only argues that Rawls
    must not limit political reasons to only those
    reasons held in common by all people. As a
    natural law philosopher, he insists that some
    truths can be ascertained by all through unaided
    natural reason and are therefore acceptable in
    the public square, even if not all citizens
    recognize them or even if these naturally
    discerned truths are rejected by many. If Rawls
    requires overlapping reasons, George requires
    natural reasons, but both ultimately reject
    revealed or religious reasons.

    public subject matter, say justice, overlaps and
    is relevant in ones religious concerns
    concentric circles)
  • 1. Critiques of Rawls Not consistent with
    liberal democracy, free speech, or pluralism
    discredits men like MLK and movements like the
    abolition movement inconsistent with government
    neutrality since secularism/naturalism differ
    with Christianity, for instance, only in content
    not form conceived using a non-neutral view of
    human nature (individual, atomistic, utility
    maximizing) conceived towards a desired result,
    the case of abortion and slavery (original
    position vs public reason) self-defeating since
    Rawls assertion that only reasons held in common
    are permissible is itself a principle not held in
    common by all, so it too should be excluded
    conversion shows that religious or
    worldview-premised arguments are not
  • 2. Nicholas Wolterstorffs critique of Richard

  • Key concepts in Political Theology
  • A. Opening questions - do the spheres overlap?
    A word about political theology vs political
    ideology or perhaps political idolatry?
  • B. Key questions
  • 1. What is breadth and depth of
  • 2. What is the nature of the kingdom of
    God/Christ? What about the New Heavens and New
    Earth (passing away?)
  • 3. When and how is that kingdom realized?
  • 4. How adequate is natural revelation for all of
  • Is the state supposed to enforce the moral law of
    God. What about the first table?
  • C. Christ and Culture (Reinhold Neibhur)
  • Christ against Culture (opposition Holy Huddle
    escapism the culture is lost and evil and
    Christians should separate themselves entirely)
    Quaker, third-race sectarians Anabaptists
  • Christ of Culture (agreement whatever is
    good/enjoyable/helpful in culture is coextensive
    with Christianity no conflict at all) 19th
    20th century liberal Protestantism (Jefferson)

  • Christ above culture (grace perfects nature
    synthesis where culture is finished off by
    church culture can lead you to God but church
    must take you the rest of the way) Aquinas and
    Roman Catholic tradition
  • Christ and culture in paradox (tension dualist)
  • Christ transforms culture (reformational
    creation is good being misdirected and is in need
    of recreational work of Christ through
    Christians) Calvinistic and social gospel
  • D. Political Theologies (Historic)
  • Strong Separation Models Baptist (historic) and
    Anabaptist traditions (Gods rule ended at the
    cross) Fundamentalists early 20th century. My
    kingdom is not of this world Be ye not conformed
    to this world.
  • Interactive You are salt and light In but not of
    the world thy kingdom come cultural mandate in
  • Indirect influence Lutheran Two Kingdom theory
    (state is not evil, but irrelevant for the church
    (except in gross injustice) Christians are dual
    citizens of two non-overlapping God ordained
    kingdoms operating under separate purposes,
    ethical codes, means, etc.).
  • Direct influence Vatican II-Roman Catholic
    (subsidiarity and solidarity) and Dutch Reformed
    Protestant Principled-Pluralism (this
    neo-Calvinist seeks to find biblical principles
    of justice that apply without preference for one
    professed faith over another, in a diverse
    society) Neo-evangelicalism (response to
    fundamentalist withdrawal engage every front,
    but tempered by degree of scriptural clarity
    expect neither utopia or ruin) Liberation
    Theology (theology from the oppressed)

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  • 3. Strong Church-State Affinity Trent - Roman
    Catholic, Erastian-Anglican, National
    Confessionalist and Christian America groups
    (Puritans and the Christian commonwealth). All
    authority has been given to me in heaven and
    earth (Matt. 2818)
  • Again, the key determinants of these models is
    ones view of eschatology (when Christ returns),
    continuity between testaments, view of the state
    in NT (permissive or restrictive).

  • I. Religion in American Political History
  • Religious Groupings based on affiliation surveys
  • Evangelical Protestants (26.3) trace their
    heritage to the Protestant Reformation of 16th
    century and Great Awakenings of the 18th and 19th
    centuries) doctrinal distinctives stress the
    final, reliable, and sufficient authority of the
    Bible in all that it affirms typically stress
    the exclusive truth of Christianity and universal
    need for justification before God through faith
    in the substitutionary atoning work of Jesus
    Christ. E.g. Southern Baptists, Presbyterian
    Church of America, Assemblies of God.
  • Mainline Protestants (18) same heritage, but
    have departed from the traditional doctrines
    (especially regarding scripture bible
    contains/becomes, but is not, the very Word of
    God) from the Reformation in light of modernity
    and scientific theories of Darwin (indeed, no
    unifying system of doctrine). E.g. United
    Methodists, PCUSA, United Church of Christ. Less
    likely to accept a literal Hell or universal need
    for conversion. More likely to stress social
    justice. High percentage of evangelicals
    attending mainline denominations (South).

  • Roman Catholics (24 46 of immigrants are
    Catholic 29 of all Catholics are Latinos
    youngest cohort split between whites and Latinos)
    considers itself to be the original and one
    true church of Christ through apostolic
    succession from Peter and the apostles.
    Distinguishing doctrines Ecclesiastical
    supremacy, necessity, and infallibility of the
    church, headed by the Pope or Bishop of Rome in
    all matters of faith. Religious authority is
    divided between tradition, scripture, and
    teaching magisterium
  • Historically Black Protestant denominations (7)
    born out of revivalism in the late 18th and early
    19th century largest is Church of God in Christ
  • Unaffiliated or Secular (16 doubled in 20
    years 25 of 18-29 5-7 atheist or agnostic)
  • Secular (7) free from religion and stress
    belief in the powers of human reason over
    revelation in the discovery of truth (secular
  • Atheist, Agnostic (4) considers the evidence
    for Gods existence to be unpersuasive (they may
    then disbelieve or leave it at that).
  • Unaffiliated Believers (5)
  • Others Mormon 2 Jews 2 Muslim 1-2 Hindu,
    Buddhist, Jehovah Witness, Orthodox, Other
    Christian, all under 1 each

  • Brief Church and State History Leading to
    American Birth
  • The American founders revolutionized the Western
    tradition of religious liberty. But they also
    remained within this Western tradition, dependent
    on its enduring and evolving postulates about God
    and humanity, authority and liberty, church and
  • First Millennium
  • Christians came out of periods of extensive and
    intensive persecution by the Romans. They were
    noncomformist (refused to worship pagan gods or
    Ceasar) and agitators (sought to transform pagan
    society with Christian morality charity,
    burials, infants, social customs). Emperor
    Julian These impious Galileans not only feed
    their own poor, but ours also welcoming them
    into their agapae, they attract them, as children
    are attracted, with cakes. Whilst the pagan
    priests neglect the poor, the hated Galileans
    devote themselves to works of charity, and by a
    display of false compassion have established and
    given effect to their pernicious errors. See
    their love-feasts, and their tables spread for
    the indigent. Such practice is common among them,
    and causes a contempt for our gods.
  • Persecution ended when Emperor Constantine
    converted to Christianity, signed the Edict of
    Milan (311) tolerating all religious beliefs
    though privileging Christianity some.

  • Future emperors, however, began to pursue a
    policy of preference and control over Trinitarian
    Christianity (supreme over church and state).
  • Augustine put these realities together in City of
    God (413-427), where he argued that Christians
    are members of a different city (not city of
    man), but it would be better for all if the
    rulers of the city of man favored Christianity
    (though institutionally separate from, if not
    under, church authority). BUT, few emperors
    could resist urge to consolidate and control the
    spheres. He further refutes Roman superiority as
    fulfillment of history (focal point). Rather, no
    state (Christian or otherwise) can be identified
    as Gods Kingdom on earth heavenly kingdom is
    always future.
  • Papal Revolution changed all that after 1050
    when a series of Popes moved towards
    ecclesiastical separation from and even control
    of civil leaders (Catholic independence).
  • 1. Canon Law - The papacy claimed expanded
    jurisdiction in law, treatment of non-Christians,
    church life, and political matters. Out of these
    papal pronouncements, we get Canon Law (first
    modern body of international law). Based on
    notion that Pope had two-swords (civil law and
    canon law, where canon in superior to civil).
    Whole systems of law developed around seven
    sacraments (baptism, eucharist, penance, orders,
    extreme unction, confirmation, and marriage).
  • 2. Rights a whole body of legally recognized
    rights emerged

  • out of this tradition. These rights constrained
    church/state and protected the Catholic faithful
    (not others) from arbitrary or oppressive
    ecclesiastical and civil decisions.
  • This system of international law began to break
    down as nation-state kings asserted their own
    territorial authority and refused to recognize
    Canon Law as absolute/binding.
  • Protestant Reformation (16th and 17th century)
    march toward religious tolerance, liberty,
    disestablishment, constitutional republicanism
  • Luthers contribution (1) territorialized the
    faith establishment should be local (2) Two
    Kingdom Theory Christians are members of two
    God ordained, legitimate, good kingdoms The
    civil sphere administers law church administers
  • Anglicans nationalized the faith model that was
    basically NOT continued by new world protestants
  • Anabaptists communalized the faith emphasis was
    on the irreconcilable differences between realm
    of religion/church and realm of the world.

  • Calvins reformation congregationalized the
    faith church was to be ruled by elected leaders
    (pastors, elders, deacons) bound to written
    confessions of faith
  • Political Implications of PR Reformers of both
    generations articulated a political philosophy
    based upon their reading of Scripture which
    denied the absolute authority of the state (or
    people) considered rulers and subjects as
    equally valuable (same as in church) placed the
    people and law above the king generally called
    for a federal-democratic, divided, political
    system of limited government to deal with sinful
    tyranny called for a constitution which mirrored
    Biblical covenants where divine law (perhaps 10
    commandments) serves as a transcendent ground of
    civil law (confession in church covenant in
    politics) acknowledged right of people to resist
    and depose a king who violates the terms of
    covenant insisted that we do not form government
    based on self-interest or ideals that we
    ourselves determine (read p. 13 Witte)
  • Note on church government the most common forms
    of church government (decision making structure)
    among the Reformers was congregational
    (democratic) or presbyterian (federal-republican).
    Clearly, many reformers came to believe that
    their view of how church govt should be
    structured came to influence how civil government
    should be structured (Presbytery agreeth with
    monarchy like God with the devil)

  • E. Constitutional Covenantalism The Puritans
    viewed a covenant as a social and divine promise
    each participant in the covenant is expected to
    do certain things. A violation of the covenant
    could have the most disastrous consequences for
    those who had entered therein. Following biblical
    precedents, a covenant would also last from
    generation to generation. By means of these
    covenants, Puritans were among the first English
    speaking people to implement a government bound
    by written words in a single document. Example,
    Deut 11-17
  • Comparing Covenants and Contracts
  • Covenants use Broad instead of Narrow language
    (no loopholes)
  • Covenants are solemn sacred promises instead of
    cold legal words on paper
  • Covenants are social/communitarian in nature
    instead of individual (We instead of I)
  • Covenants identify a collective purpose and
  • Covenants are validated or sealed in the presence
    of and by an external higher authority, typically
  • Think about a difference between marriage as a
    covenant vs contract and you might get the
    spirit of the distinction.

  • Reformation Political Thought
  • Political Sovereignty rests with God ? people ?
  • Ground of Natural Human value/rights Imago Deo
    (originates with God)
  • Justification for Govt ordained by God at
    least to suppress evil (original sin), promote
    common good including proliferation of true
    religion (more communitarian)
  • Constitution morally-informed pact between
    people having independent/equal status,
    constructing a limited govt based upon voluntary
    consent and established by promises made before
  • Implications Reformation political thought led
    more to federal-republicanism, with divine law
    and God as supreme elected reps from each
    political unit, tribe, church, state (Glorious
    Revolution, English Civil War). Also Federal
  • Secular Enlightenment Political Thought
  • People ? State
  • NHR ground State of Nature, mutual and
    unanimous consent, virtue of being human
    (originates with humans)
  • Why govt? Self-interest, protect natural rights
    (life, liberty, property) return individuals to
    natural state of autonomy more individualistic
  • Constitution is a legal contract among people to
    form govt for sake of self-interest, limited
    govt, and binds all (posterity and immigrants)
  • Implications - Enlightenment thought led more to
    democracy, with human law and the majority as
    supreme (French Revolution)
  • Todays liberal theorists like Rawls attempt to
    ground freedom in something other than natural
    rights/law (too religious) and appeal only to
    what is rational.

  • Religion and the Constitution in 18th Century
  • Introduction - how did America come to
    accept/enshrine principles of religious liberty,
    tolerance, disestablishment, church-state
  • A. Why look beyond the Constitution to
    understand the role of religion in American
  • Constitution sets outer boundaries (no
    prescription or proscription of religion by
  • The records of the constitutional congresses
    debates on the first amendment are brief/sketchy.
  • Limited to Congress, not states (Congress shall
    make no law)
  • Framers intended for states to interpret these
    clauses and appropriate them as they saw fit
    (Madison quote, Witte, p. 21)
  • B. To understand the intended relationship
    generally, at the time, we must identify the
    principle players involved in forging the
    consensus behind church-state relations in the
    18th century by looking at four groups on the
    religion side, Puritans and Evangelicals on the
    political side, Enlightenment thinkers and
    Classical Republicans.

  • The four groups
  • American Puritans (dominant from 1630-1730) and
    the Christian Commonwealth having been
    persecuted and/or religious regulation by both
    Catholic and especially Anglican monarchies, this
    group took their Calvinism to America (system of
    Christian theology stressing the utter
    sovereignty of God in all things as well as the
    institutional separation of church/state). Key
    group are Congregationalists.
  • Church and State are separate distinct
    covenantal associations or two seats of Gods
    authority. Church was about preaching,
    sacraments, charity. State was about enforcing
    law, punishing crime, instilling virtue, and
    order. Clergy could not hold political office
    political leaders could not hold church office.
  • BUT, though not to be confounded, they were to be
    close and compact (the community is a common
    project of both church and state, so some
    interdependence). State provide church with
    public properties, tax exemptions, subsidies,
    Sabbath Day laws. Church provided state with
    meetinghouses/chapels, community
    schools/libraries, maintenance of census rolls,
    marriage, death certificates offered election
    day sermons to promote civil participation.
  • Emphasis on community and local religious
    conformity led

  • to banishment of dissidents, like Quakers,
    Baptists, Catholics, Jews, etc. Puritans were
    separatists from Anglicanism, but this did not
    initially seem to require them to accept
    disestablishment or toleration at the local
  • Things changed, however, in 1689 (Toleration Act)
    as more and different kinds of Protestants from
    around Europe sailed over. The Act required
    toleration, but not full political equality of,
    other traditional Protestant churches. More and
    more, the covenantal idea of civil society
    (though not church society) was viewed as more
    open and voluntarist by Puritans in terms of
    individual conscience (open to other Christian
    sects). Came to celebrate, rather than suppress,
    denominationalism in theology (idea that there
    are many paths to God within orthodox Protestant
    Christianity) and toleration of religious
    pluralism in civil society. Read pp. 25-26
  • Evangelicals Product of the Great Awakening
  • 1. Great Awakening - a series of evangelists
    (Wesley, Edwards, Whitefield, Tennet) began to
    challenge the dry, rigid, religious legalism
    (conversionless Christianity where salvation is
    conferred through ritual or routine) and
    institutionalization, protection, of the church
    by the state. Wanted fuller separation, more
    freedom of association, and liberty of conscience
    (remember, these were either new or unestablished
    groups like Baptists, Methodists, and
    Presbyterians). John Leland, a Baptist fiery
    preach, said, The notion of a Christian
    commonwealth should be exploded forever.

  • Isaac Backus, Reformed Baptist theologian mid to
    late 18th century (p. 28) Christianity should
    fear BOTH state repression and support of
    religion. Establishment results in a distraction
    from divine mandates and capture of established
    church. Want to promote Christianity?
    Deregulate it. Besides, the state and church are
    not working on the same projects (maintaining
    order vs proclaiming gospel) or using the same
    means (sword vs means of grace). He coined term
    separation of church and state. Led evangelicals
    in pushing for constitutional means of
    disestablishing religion.
  • Enlightenment views provided theory
    complementing evangelical theology on religious
    liberty. Locke argued that the state only exists
    to protect life, liberty and property (mans
    outward concerns), not to promote religion
    (mans inward concern). Laws cannot touch
    ones mind, which is the object of religious
    activity. He did, however, argue that state laws
    would only seldom conflict with Christian
    values and he refused to tolerate atheists
    altogether (cant be trusted to keep promises or
    oaths). Saw disestablishment and religious
    liberty as solution to violent religious conflict
    (political instability). Summarized by Madison
    well (p. 31 Witte).

  • Republican Views spokespersons were Washington,
    Adams, Benjamin Rush, etc. If Enlightenment
    thinkers (like Jefferson) naturally aligned with
    Evangelicals, Classical Republicans naturally
    aligned with old Puritans. Agree with both Es
    on disestablishment and liberty of conscience,
    BUT wanted the state/public square feature a
    common religious ethic (non-sectarian and
    theologically specific). They stressed the
    utility of Christianity as a prerequisite to
    happy citizens, effective/efficient good
    government (pillar of society and necessary for
    its peace, prosperity, and endurance). Read p.
    33. Their approach was similar to Massachusetts
    constitution (see p. 34-35)
  • E. Establishment of Civil or Public Religion -
    Result, the Classical Republicans won out.
    First, it won out in the first Continental
    Congresses through official actions/proclamations
    (chaplains, schools, missionaries, prayers,
    Northwest Ordinance 1878). Second, won out among
    states by leaving alone state establishment
    practices (promoting even particular
    denominations). Third, it won out in time (we
    continue to favor or accommodate, in a number of
    official and unofficial ways, generic monotheism
    and Christianity in everything from money to
    White House Christmas.

  • Forging the First Amendment at the Constitutional
  • The Context of Religion Clauses leading up
  • Paid chaplains to lead prayer at Cont Congress
    entire time.
  • Thanksgiving day and fast-day proclamations
    (1775), one of four proclamations it is the
    indispensable duty of all men to adore the
    superintending Providence of the Almighty God.
    Also urged all men to express the grateful
    feelings of their hearts by publick
    humiliation, fasting, and prayer and confess
    and deplore our many sins and pray that it may
    please God through the Merits of Jesus Christ,
    mercifully to forgive and blot them out of
    Remembrance, that God would grant the promotion
    and enlargement of that Kingdom, which consisteth
    in Righteousness, Peace, Joy, in the Holy Ghost.
  • Voted to fund the procurement of 20k Bibles for
    distribution in the States (never done due to
    lack of funds later merely encouraged states to
    have one or more new and correct editions of the
    Old and New Testament to be printed

  • Writers of the Articles of Confederation refused
    to prohibit religious tests for public office
  • Resulting sentiment captured in the Northwest
    Ordinance AFTER the First Amendment was written.
    On the one hand, in the territory no one was to
    be molested on account of his religion, but
    religion was to be promoted in the territory by
    the government.
  • Drafting Process
  • House version Congress shall make no law
    establishing religion, or prohibiting the free
    exercise thereof, nor shall the rights of
    conscience be infringed. Elsewhere, a sixth
    amendment would say, No person religiously
    scrupulous shall be compelled to bear arms in
  • Senate version (three early versions defeated
    read p. 87-88). Senate version (19 p. 88)
    Congress shall make no law establishing articles
    of faith or mode of worship, or prohibiting the
    free exercise thereof.
  • A conference committee (HR and S) composed of a
    cross-section of our four groups gave us our
    current/final version with no surviving debate

  • How are we to make sense of their unclear
    intentions? Two possibilities
  • Thinner reading clauses set outer boundaries of
    appropriate congressional actions on religion
    (neither prescribe nor proscribe). Leaves open
    later discussion and perhaps legislation on
    religion. Based on fact that earlier drafts had
    more sweeping language and were rejected
    (Congress shall not touch or favor or
    prefer religion). Instead, they adopted
    respecting (point to) establishing religion.
  • Thicker readings (more reading in to the words)
  • 1. Congress not binding on the states
  • 2. Shall make no law no new laws, but
    confirming existing ones? Probably not, since
    new laws easily passed that did in fact touch on
  • 3. Respecting an establishment could refer to
    C not touching a state established religion (6
    had them then) or could mean C cannot pass laws
    aimed at promoting an established religion
    (respecting is an umbrella term touching on
    doctrines required worship, mandatory tithing,
    etc.) so on the first view, concern is not
    interfering with states on the second, the
    concern would have been not to allow Congress to
    move in the direction of a national established
    church (with all attendant laws). The first
    reading gives Congress no guidance on national
    laws affecting religion the second gives them
    guidance, but does not allow much beyond what was
    already commonplace (chaplains, religious
    education, etc.). Conclusion?

  • Non-preferentialism a mixture of these views
    suggesting that all the founders intended (or
    could agree upon) was to outlaw an established
    national religion, but allows for support of
    religion in general. Put positively, C can
    touch religion so long as it favors no
    particular one. This view explains the various
    laws touching on religion (chaplains, etc.).
    This view has a harder time explaining the word
    respecting however.
  • Prohibiting Free Exercise umbrella term
    referring to all that is meant by free exercise
    this reading would mean that it merely prevents C
    from prohibiting free exercise of religion (they
    dropped the liberty of conscience clause)
  • Religion IMPORTANT DEFINITION to get free
    exercise, it must be religious to constitute
    establishment it must be a religion (or
    religious) what is the pale of recognized
    religion? Then it did not go beyond monotheism
    (Jews, Islam, Deism, Christianity, etc.). What
    about conscientious objectors?
  • In the end, we get a new experiment, despite the
    lack of clarity, when it comes to church state
    relations. Read Madison p. 100-101.

Religion Clause Interpretation prior to 1947
  • Introduction very few national laws touching on
    religion (or challenging existing laws doing so).
    Religion laws were left to states (and the
    development of new state constitutions).
  • State Constitutional treatments of free ex
  • Free Exercise - State constitutions articulated
    and stipulated very detailed religious liberty
    and conscience laws (far beyond first amendment
    language), recognized reality of and equality
    between religious groups (explosion after 2nd
    Great Awakening) they moved towards greater
    separation between church and state (two states
    banned clergy from political office until 1978
    and several states adopted Blaine amendments
    which prohibited tax dollars from being spent on
    any church or sectarian institution or activity).
  • Motivation behind Blaine amendments and support
    for compulsory expanded public education came
    especially from two sources Secularists, who
    wanted to de-Christianized society
    anti-Catholic Protestants (latter group wanted
    protect the dominant Protestant ethos (mode of
    thought) which permeated American society from
    Catholic immigration.
  • B. Disestablishment only 7 of 12 had
    disestablishment statements, but the reality of
    religious pluralism and the strong free exercise
    language probably made it unnecessary for the
    other five.

  • Yet, most of the constitutions grounded or
    justified their protections of religious liberty
    in their understanding of what Almighty God
    would have us do to fellow persons.
  • Law in action vs Law on the books Frontier as
    the release valve (1787-1947)
  • Challenge and legacy of the Founders state
    sought to balance the general freedom of all
    private religions with the general patronage of
    one common public religion (Protestant
    Christianity) with dissenters moving (or moving
    West) for greater freedom. In short, promote
    both pluralism civil religion.
  • A measure of discrimination still occurred (NE
    against Quakers, Baptists, Methodists NY, NJ, PA
    against Unitarians, Adventists, Christian
    Science South against Catholics and all against
    Jews, Native American religion, and Islam).
  • Civil religion continued symbols (crucifixes,
    In God We Trust, etc.), Ten Commandments,
    national prayers, blue-laws (Sunday observance,
    blasphemy, etc.), official holidays were
    Christian, property grants/subsidies for poor
    Christian churches/charities/schools mandatory
    chapel and Bible teaching in public schools laws
    banning polygamy, prostitution, pornography,
    gambling, often banned as offenses to Christian
    morality. Legal defense? Christianity is a part
    of the common law tradition (bedrock or
    foundation of law).

  • Getting out of town or state religious
    minorities in an area just moved around until
    they were more comfortable (Mormons moved from NY
    to Ohio to MO to IL to Utah then colonized NV
    and ID). Free spirits moved to Mountain West and
    Oregon or Washington.
  • Religious diversity reached all time high at the
    turn of the century (1900). Why?
  • 2nd Great Awakening (1820-1860) complete
    abandonment of tradition, creeds, and
    confessions stressed new experiential thing in
    Christian (common message was Restoration).
  • Reconquest of eastern seaboard by Baptists,
    Methodists, and Catholics
  • Civil War intradenominational divisions new
  • Civil War amendments freed not only slaves but
    latent African-American churches
  • Immigration European (especially Catholics) and
    some Eastern (Buddhist, Hinduism, etc.).
  • Key Result MAJOR change in religious landscape
    (Table 5.1). From Anglican and
    Reformed/Calvinist to Evangelical. Irony?
    Evangelicals far more interested in separation of
    c/s but far more interested in an implicit
    endorsement by state/society of basic Protestant
    Christian values.

  • Rise of the Secularists (1870-1920) originally
    allies with Evangelicals on establishment and
    liberty of conscience. But now moved to take
    over knowledge production centers of society
    (education, law, science) by extricating elite
    institutions of society and the Protestant
    cultural hegemony, of any thing like a public
    or relevant Christian worldview.
  • Aim to change what the US Supreme Court said was
    true of America (if one takes a view of American
    life as expressed by its laws, its business, its
    customs and its society, we find everywhere a
    clear recognition of the same truththat this is
    a Christian nation. Unanimous opinion, 1892).
  • Education, always first. A new progressivist
    (i.e., naturalistic) vision of knowledge came to
    dominate higher ed, so that Christian higher ed
    (nearly all colleges at the time) began
    relegating religion to chapel service and
    graduation ceremonies (Is Danforth chapel
  • Science and religion recast into warfare models
    rather than complimentary models.
  • Legal realism replaced natural law as basis of
    law (no immutable truths, but evolving subjective

  • Pop culture basic Christian ethic in mass
    public ed derooted collective understanding of
    the human person changed from divinely created
    focused on morality and character to modern
    psychological constructions of the self centering
    on personality, instinct, and desire leading
    cultural leaders, speakers, moralizers were
    Protestants before bur now replaced by new
    cultural authorities in journalism and social
  • Supreme Court (Polygamy, the Mormons, a case in
  • Prior to 1940, SC reviewed a few state laws on
    religion, but not under First Amendment scrutiny
    (said Congress, not States). Only used
    principles of law and fairness (17 cases during
    this time).
  • But this changed in 1862, when Congress made
    Polygamy a federal crime and in 1882, laws were
    passed barring polygamists and plural cohabiters
    from voting, holding office, and serving on
    juries. In 1887, sought to dismantle the Mormon
    Church altogether (siezing its property) since it
    was seen as a haven for illegal polygamists.

  • Mormonism
  • Cases - Reynolds v. United States (1879), Davis
    v. Beason (1890), and CJCLDS vs U.S. (1890) all
    featured Mormons challenging these laws (law
    against bigamy, mandatory anti-polygamy oath,
    govt dissolving the Mormon churchs charter).
  • Rulings SC upheld Congressional law in each
    instance, not even entertaining Mormon free
    exercise claims (protects beliefs, not actions,
    they said).
  • Context of national fear of Mormons? Smiths
    frequent political language/gestures (ran for
    president, formed militias, spoke of building a
    kingdom headed by Mormons in America polygamy
    and birth rates, mystery in Utah) though not
    through violent rebellion.
  • Courts reaction (p. 128 Bradley).
  • Issue resloved when Utah sought statehood and the
    LDS church disavowed polygamy is right in this
  • Consequence Court reduced free exercise to a
    minimalist guarantee of liberty of conscience
    ALONE (mere opinions cant be touched).

  • Modern Free Exercise Law
  • Introduction
  • New Era (erosion of federalism in religious
    liberty law) where religious liberty is
    influenced more by US SC rather than states.
    First 150 years, 31 religious liberty cases NONE
    using the first amendment. Last 70 years, 130
    religious liberty cases, MOST using first
    amendment. Why?
  • Incorporation apply many of the Bill of Rights
    to states.
  • Consequences states have not stopped
    legislating on religion, but must keep one eye on
    constitutional law. Problem is, 70 years of
    religious liberty law has been fraught with
  • Mapping Modern Free Exercise Doctrine
  • Key points of conflict - Cases feature conflicts
    between private religious practice/belief and
    governmental power/action. Claimants argue that
    some law prohibits their free exercise of
    religion by burdening (inhibiting acts of
    worship commanding them to do something that
    conflicts with their doctrines/practices
    discriminates by burdening their religious
    activities but not those of others).
  • Easy cases Jehovah Witnesses forced to swear an
    oath or Jews forced to remove a yarmulke.

  • Hard cases unemployment insurance is denied to
    an applicant because he refuses to work on
    Saturday for religious reasons a secular
    humanist refuses to serve in the military a
    religious university refuses to accept blacks
    because it thinks the Bible requires separation
    of races a business requires devotion attendance
    for all employees.
  • One rather consistent doctrine is that free
    exercise claims must be sincere rather than
    contrived (this means religious probing). Again,
    court has to explore and define what is religious
    (naturalist faith and a farmland shrine?
    Personal religious convictions. Etc.)
  • Free Exercise Case law
  • A. Scrutiny level if low-level (rational
    basis), then law is upheld if it is reasonably
    related to a legitimate government interest if
    high-level (strict scrutiny), the law is upheld
    only if govt interest is compelling and if it is
    narrowly tailored to achieve that interest (last
    resort and least offensive). So, what level of
    scrutiny did court use in Reynolds (the Mormon
  • Scherbert and Smith since Reynolds, court moved
    in a heightened scrutiny direction.

  • Scherbert vs. Verner (1963) Scherbert gave us
    the strict scrutiny test in FE cases (compelling
    interest and narrowly tailored). This favored
    religious minorities.
  • Employment Division v. Smith (1990) Court
    rejected strict scrutiny and adopted a low-level
    test. A law is valid so long as it is facially
    neutral and generally applicable. If not, strict
    scrutiny test.
  • Evaluation of Smith - The Smith test was used
    to overturn a local anti-Santeria law in FL, but
    critics remain. They see the test is a return to
    Reynolds (strict scrutiny) and hurting religious
    minorities (if generally applicable, tough).
    Congress reacted to Smith with the Religious
    Freedom Restoration Act (1993), but the SC ruled
    that the Act was unconstitutional when applied to
    the states. So, we are left with Smith test for
    state law (low-level) and RFRA in federal law.
  • 4. Court reluctant to apply Smith because it
    seemed to disfavor minorities, but Smith is still
    the most frequently used test for Free Exercise
    featuring state law challenges. From mid-1990s
    to Locke vs Davey (2004), court even signaled
    that it might consider unequal access to
    government funds as a violation of free exercise,
    but Locke presents serious setback to that trend.

Modern Establishment Clause
  • Introduction
  • Nature of conflict government has taken an
    action respecting an establishment of religion
    (e.g., coercing participation in religious
    activity improper public use of religious places
    or things allied with religious causes or
    groups discriminates in favor of one religious
    interest over others).
  • No other body of Const. Law is more ambiguous or
    difficult to follow
  • Standards vary broadly under three headings
  • 1. Separationism government may take no
    actions that aid religion, either directly or
    perhaps even indirectly
  • 2. Accommodationism government may show or
    provide non-preferential support for religion
  • 3. Differing views of Neutrality (gray area)

  • Strict Separation Justice Hugo Black
    articulated this doctrine in the 1947 Everson v.
    Board of Education of Ewing Township decision.
    Used Jeffersons metaphor from his letter to the
    Dansbury Baptists as the lens through we
    interpret the establishment clause. Years later,
    the court constructed an allegedly clearer and
    more relaxed test for deciding establishment
    clause cases. Neutrality means secular according
    to this view.
  • Blacks language "The 'establishment of
    religion' clause of 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. Neither can
    force nor influence a person to go to or to
    remain away from church against his will or force
    him to profess a belief or disbelief in any
    religion. No person can be punished for
    entertaining or professing religious beliefs or
    disbeliefs, for church attendance or
    non-attendance. No tax in any amount, large or
    small, can be levied to support any religious
    activities or institutions, whatever they may 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.'" 330 U.S. 1, 15-16.

  • Lemon test A law is constitutional (not guilty
    of establishment) if
  • It has a secular purpose
  • Its primary effect neither advances nor
    inhibits religion
  • Does not foster an excessive entanglement with
  • B. Lemons criticisms
  • Why a secular purpose and what is a secular
    purpose? Justice Potter, we may be moving toward
    an establishment of the religion of secularism.
    Does Lemon exempt newer philosophies like
    liberalism/secularism? Does this empty
    traditional public religious promotions like
    civil religion of all substance (Nebraska
    chaplain does not aid religion)? In 1961
    (McGowan v. State of MD), Justice Earl Warren
    UPHELD Sunday closing laws. But, he did so using
    Lemon finding no violation of the first prong.
    Secular justifications have been advanced for
    making Sunday a day of rest, a day when people
    may recover from the labors of the week just
    passed and may physically and mentally prepare
    for the weeks work to come MDs law merely
    happens to coincide or harmonize with the tents
    of some or all religions.

  • Can excessive entanglement be avoided? If
    government must be sure to avoid advancing
    religion, then wont it be progressively
    entangled with it? Is this feasible in the age
    of the modern state (if govt gets in, religion
    get out but govt gets in everywhere today)
  • Result often ignored, partially applied,
    inconsistently interpreted, heavy criticism from
    all sides on the court (Paul Marshall quote p.
    129 of his book). Most on the SC today have
    largely, though not explicitly, abandoned the
    test (favoring either the old strict separation
    principle, or accommodation, or equal
    treatment/positive neutrality principle).
  • II. Accommodation - like Strict Separation,
    this groups recognizes a real philosophical
    difference in religion and secularism, but
    insists that the only intention behind the
    establishment clause is to prevent the
    establishment of a particular church/denomination/
    religion. Beyond that, governments are free to
    promote/support religion non-preferentially.
    Clearest articulation in Rehnquists critique of
    Black and Stewarts dissent in Engel v. Vitale
    (I cannot see how an official religion is
    established by letting those who want to say a
    prayer say it. On the contrary, I think that to
    deny the wish of these school children to join in
    reciting this prayer is to deny them the
    opportunity of sharing in the spiritual heritage
    of our nationSince the days of John Marshall,
    our Crier of the SC has said, God save the
    U.S. and this Honorable CourtIt was all summed
    up by this Court just ten years ago in a single
    sentence, We are a religious people whose
    institutions presuppose a Supreme Being.

  • Rehnquist dissent in Wallace (handout)
  • Equal Treatment or Positive Neutrality
    (government must be evenhanded between religion
    and irreligion).
  • Based on philosophy in part and supported by a
    series of SC decisions (especially Rosenberger).
  • Philosophy religion is utterly pervasive in all
    human endeavors but takes many forms (some
    include a god, gods, no god). Religion is
    functionally synonymous with the concept of
    worldview. In an atmosphere of proliferating
    religious pluralism (progressively since
    founding), government neutrality requires that it
    be evenhanded between worldview adherents. This
    respects everyones free exercise of religion in
    the public space. Example of Univ. of Alabama
    physiology prof. As James Reichley put it,
    Banishment of religion does not represent
    neutrality between religion and secularism
    conduct of public institutions without any
    acknowledgement of religion IS secularism. This
    is increasingly relevant in an age where
    government activity and religious activity
    increasingly overlap. Tend to argue that the
    intention of the founders is that government be
    neutral (evanhanded) between real worldviews
    operating in society (at first, only Christian
    denominations, but then different religions, and
    today religious and secular worldviews).

  • 2. Series of cases from early 90s to 2000 equal
    access to school and university facilities,
    required a school to rent facilities to a church
    to show religious film, required a state to fund
    the religious education of a blind student,
    overturned previous decision now allowing public
    school teachers to provide remedial instruction
    in religiously based schools.
  • Public policy support (Charitable Choice Act
    1996) federal government may not exclude
    faith-based charities from contracting with
    government to provide social services if it opens
    itself up to bids from other private sector
    (secular) charities.
  • Rosenberger vs Univ of Virginia (1995) Kennedy
    We have held that the guarantee of neutrality is
    respected, not offended, when the government,
    following neutral criteria and evenhanded
    policies, extends benefits to recipients whose
    ideologies and viewpoints, including religious
    ones, are broad and diverse. Basically, UVA
    could choose to fund none, or all, but if it
    chose to fund secular organizations it must also
    fund religious ones. Souters dissent The
    Court today, for the first time, approves direct
    funding of core religious activities by an arm of
    the State.The Univ exercises the power of the
    State to compel a student to pay for it, and
    the use of any part of it for the direct support
    of religious activity thus strikes at what we
    have repeatedly held to be at the heart of the
    prohibition on establishment.

  • The only other viable establishment standard
    worth noting is OConners endorsement test.
    In it, she wants to know only if the governments
    actions would be construed by the objective
    observer as endorsement of religion. So, in
    Wallace vs. Jaffree, Alabamas moment of silence
    was unconstitutional to her because the statute
    said students should pause for a moment of
    silence or prayer. If prayer had been excluded
    from the language, she said she had no problem
    with it. But saying prayer implied endorsement
    of a religious activity.

The New Christian Right
  • Introduction
  • Its New because evangelicals had been heavily
    involved in politics in the 19th century
    (anti-slavery, Sunday closing laws, humane
    treatment of Native Americans, prohibition,
    public education, the Progressive Movement and
    government action against industrialization or
    raw-capitalism abuses, etc.).
  • The Secular Revolution (fueled by urbanization,
    modern science and technology, economic
    prosperity and intentional organized effort to
    displace the Protestant public ethos with a
    secular one) and rise of Protestant Liberalism on
    one hand combined with rise of Dispensationalism
    among most evangelicals (infatuation with
    end-times prophecy, pessimism about the last
    days, and the imminent return of Christ) caused
    many evangelicals to exit culture or politics and
    see it as unrelated to the churchs mission. In
    the 1950s and 1960s, Falwell said that a preacher
    would be judged by God for becoming involved in
    politics. They felt safe, however, in the South
    and rural parts of the country (still more
    numerous) even if elite centers turned secular.
    The paradigm shift was seen as happening
    somewhere else, not small-town America.

  • First stirrings prior to the 1970s Democratic
    Party elected JFK (Catholic) in 1960 Barry
    Goldwater nominated as Republican 1964 George
    Wallace ran as an independent in 1968 (all of
    this weakened white evangelical tie to Dems).
  • So what caused the shift to the GOP and Rise of
    the New Christian Right (political reawakening)?

  • II. Rise of the New Christian Right (NCR) The
  • Evangelicals began to climb the socio-economic
    ladder (1940-1960, white SBC averaged just under
    8 years of formal education by 1970 it was 11).
    With more money and education they acquired a new
    interest/stake in politics as well as more
    resources to engage it.
  • Theological divisions came first (then cleared up
    w/ divorces) the progressives vs the orthodox.
    Religious camps in the past were typically
    denominational alliances across denominational
    boundaries were rare. But, in the 20th century,
    theological orthodoxy became the most important
    dividing line among the religious, not
    denomination. Traditional Catholics discovered
    they had more enemies within Catholic circles
    than among the evangelicals (same could be said
    of Protestants regarding their own
    denominations). In the 20th century, churches
    responded to theological liberalism by splitting
    off (PCA) or reforming from within (SBC). Today,
    what matters most in Protestantism is orthodox
    belief (evangelicalism), not church affiliation
    (sharing pulpits increasingly common Falwell).
    These theological alliances provided the
    framework for future political alliances and
    organizations in the Christian Right (Pat
    Robertson - Charismatic, D. James Kennedy -
    Presbyterian, and Jerry Falwell - Baptist).

  • Status Politics and Emergence of Culture War
    issues, especially as partisan issues (that is,
    when parties and candidates took sides, religious
    views on culture war issues became divided not
    just theologically but now along party
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