Last week, on January 16, America marked Religious Freedom Day. The day commemorates enactment of the Virginia Statute for Religious Freedom of 1786, a precursor of the First Amendment. Written by Thomas Jefferson, the Virginia statute disestablished religion in the commonwealth—“no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”—and prohibited civil penalties for the expression of religious belief—“all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson saw the statute as one of his three great accomplishments; along with the Declaration of Independence and the founding of the University of Virginia, he directed that it be noted on his tombstone.
Connecticut’s Roger Sherman was the only Founder to help draft and sign the Declaration and Resolves (1774), the Articles of Association (1774), the Declaration of American Independence (1776), the Articles of Confederation (1777, 1778), and the U.S. Constitution (1787). As a member of the first federal Congress, he played an influential role in drafting the First Amendment.
Yet when Supreme Court justices have turned to history to interpret the Establishment Clause, they have referenced Sherman only three times. By way of contrast, Thomas Jefferson, a man who played no role in drafting or ratifying the amendment, is referenced 112 times.
Almost every constitutional law scholar—Left, Right, and center—agrees that the U.S. Supreme Court’s Establishment Clause jurisprudence is, to put it kindly, confused. Much of the blame for this mess can be laid at the feet of Everson v. Board of Education, which turns 70 this year.
It does not take a sophisticated legal realist to recognize the hopelessness of any claim that the status of Christmas as a state or federal holiday violates the Establishment Clause. Justices don’t want to be the greatest grinches of all time.
And, in any event, under current law it is clear the current Christmas holiday is constitutional. It has a secular purpose and context as well as a religious one—most importantly being the anchor of the holiday season that more than any other boosts consumer spending. Evaluating Christmas as a holiday is a bit like evaluating Christmas displays themselves for constitutionality. A secular context, like enough dancing reindeers or increased GNP, can redeem the religious content. It may seem odd to a layman but the more crassly commercial Christmas becomes, the more it becomes legally safe as a holiday.
But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause.
Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities. Equality of treatment between religion and nonreligion has also always been a part of our tradition…
Many of my undergraduate students have trouble understanding the threat that religion might pose to the state. Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has…
Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise…
I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart…
David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small, fledgling church having no fixed site for its services. His masterful performance was recognized this week: victory, with a box score of 9 to 0. Cortman brought to the aid of this small congregation all of the dedication and resources of the Alliance Defending Freedom.
In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.”
A few weeks ago, a friend of mine in Religious Studies returned from a conference at a major law school with this report: “Not all, but the majority of presenters agreed that Christians should be marginalized and have their freedom of speech and religion severely restricted because of how hateful their beliefs about sin are and the dignitary harm these beliefs cause others. Am I just young and naive and in reality nothing will come of this, or is it a truly scary reality that leading law professors are saying this?”
I don’t know whether my friend will be reassured or further discouraged if he reads The Rise and Decline of American Religious Freedom, but he will discover one leading scholar in the field who shares his alarm and addresses the matter with purpose and equanimity. Steven D. Smith, Warren Distinguished Professor of Law at the University of San Diego, has composed an essay rather than a treatise or a legal brief, an attempt to get partisans on both sides of the culture wars to see today’s disputes concerning politics and religion in historical perspective. Writing as a man of soft-spoken faith, he aims to begin a conversation, not avoid one, although he is surely aware that those who won’t listen are difficult to persuade.
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…