How free is religion in America?

Tearing down St. Patrick's Cathedral to widen 5th Avenue probably won't happen in our lifetimes, but the sacred ground of less mainstream religions is not as safely protected, says Edward McGlynn Gaffney. And this should be of high concern to all Americans.

"We have to be attuned to all forms of religious expression," says Gaffney, "and when the government--whether city, state, or federal--seems to pick out the most vulnerable of our religions, the state is making incursions on everyone else's religious well-being."

Gaffney is dean of Valparaiso University School of Law in Indiana and an author of numerous legal essays on religious freedom and First Amendment rights.

Why should Catholics worry about freedom of religion?

People are confused over the proper role of religion in society right now. As Americans, we suffer from historical ignorance. Because of this confusion and lack of knowledge, we have become blind to the effects of many of the laws that restrict practices of so-called fringe religions, which will eventually, if they don't already, affect Catholics and other mainstream religions.

Let me give you an example. If the city of New York decided that it needed to widen 5th Avenue and that it would be necessary to tear down St. Patrick's Cathedral, Catholics worldwide would be infuriated and rebel. But the sad truth is that we don't rise up in arms when it concerns someone else's religion and sacred institutions, such as the Native Americans who are being trampled on, and that's a point we really need to seriously address.

There isn't one single religious group in America that has not suffered persecution at the hands of government at some point in our various histories. We have to be attuned to all forms of religious expression, and when the government--whether city, state, or federal--seems to pick out the most vulnerable of our religions, the state is making incursions on everyone else's religious well-being as well. If the courts can make a rule with respect to someone who is politically vulnerable, it may filter down to even mainstream religions losing out in the legislative process altogether.

It's hard to believe that would ever happen.

Most of the cases that have been presented to the Supreme Court are coming up in two guises that threaten the practice of religion. One is extensive regulation by government that didn't exist 50 to 70 years ago--and certainly wasn't there at the founding of the Republic--such as zoning or access laws. Zoning laws are now widely used to keep religion out of new major developments. This is the case in Southern California--and I'm not talking about villages with ten homes, which don't want to set aside space for a church, but 100,000 homes in which the zoning board says to the developer, "You can have all the land for private development. And we're not going to set aside one square foot for a church or synagogue." And handicap-access laws have been invoked to restrict religious-based dwellings. Recently in New York a shelter for the homeless operated by Catholic nuns on the second floor of a walkup building was closed citing access laws because the facility didn't have an elevator. Does it make sense to throw the homeless back on the streets? Are they any safer there than on the second floor?

And in other cases the decisions reached reveal little or no respect for sincere religious convictions at odds with the sensibilities or preferences of the majority. In the landmark case Oregon Employment Division v. Smith the court decided against Native Americans and for the state of Oregon to ban the use of hallucinogenic peyote, an outlawed drug, in Native American church ceremonies. In Smith, the government decided which religious practices would be accommodated in society and which should be illegal. This decision marks a complete shift in the court's attitude toward the free exercise of religion--people are being punished for their religious worship.

Religious rights are also threatened when Vietnamese people, who hold a deep reverence for the body, are told that their concerns about autopsies don't count. Does the state always need to perform an autopsy if the family is against it? Or if an Orthodox Jew says, "I have to bury by sundown," one would think there would be some sensitivity, especially in such a moment of sorrow.

But how do such rulings affect Catholics?

Imagine that Catholicism was a so-called fringe religion and some state, because of its age of consumption laws, decides that it isn't okay for Catholics under 21 years of age to partake in the drinking of wine during the Eucharist. Under the precedent set in the Smith case, the government could prohibit our sacramental worship in the sense of limiting the participants. (Now I'm sure that a clever Catholic lawyer could figure a way out of it: "When we receive Eucharist, it's not wine anymore.") As Catholics in the current position as a mainstream religion, there isn't a prosecutor in the country who would think of applying the law about the age of consumption of alcohol to a Catholic Mass. We can trust the political process to work for us. But can you see the bias in the Smith case against Native Americans and other religions?

So is religious freedom in trouble in America?

No, not entirely. The upshot is that we're still able to function as a nation without making religion the test of whether or not we can get a job, vote, be a lawyer or a doctor, get married, and so on. We can still do all the things that the First Amendment was designed to protect. But we've had anti-Catholicism, anti-Mormonism, and bias against numerous other religions. It would be perfectly ridiculous to give a rosy picture of religious freedom in American history.

The court's job is to allow the practice of religion while insuring that it is in no way, shape, or form promoting religion. The court considers it its duty to foster secular purposes--those not overtly religious. The problem comes in when certain programs or practices involve religious institutions or people that also promote so-called secular goods, values, and practices. That's where issues of the First Amendment become confused.

What exactly does the First Amendment say about religion?

The words in the First Amendment that affect religion are very few and seem on the face of it to be very plain: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The First Amendment--the first of our civil liberties--is formed by two provisions but only one clause. One provision prohibits the government from establishing or promoting religion, and the other provision prohibits the government from inhibiting the free exercise of religion. Both provisions form a double guarantee of religious freedom by setting important limits on governmental power.

Some folks think of these provisions as rivals in a grand tug of war. In this view the establishment provision, as it is called, is at odds with the free-exercise provision, which gives religions the permission to thrive, because it must prohibit what the free exercise requires. In my view, however, we need a more harmonious linkage between these provisions. It doesn't make much sense that James Madison would have written a text in which one provision would, in effect, nullify the other. Do we really think that Madison would have packed utterly contradictory meanings into the free-press provision, both promoting wide-open debate on political matters and enabling the government to censor its critics? But that is the crazy kind of competition between the no-establishment value and the free-exercise value that the modern court has read into the First Amendment.

When the First Amendment was written, one of its objectives was to support the freedom of religious-fringe groups. Such radical religious groups in our early history included Mennonites, Quakers, Baptists, Lutherans, Catholics, or any other religion that wasn't part of the British Crown's established church, the Church of England.

Recent documents, such as the Williamsburg Charter, written in 1988 as a communal effort to celebrate the Bicentennial of the Constitution and the First Amendment, exist to reaffirm the historical connection between religion and politics. The Williamsburg Charter states that any exclusion of religion from public life is historically unwarranted, philosophically inconsistent, and profoundly undemocratic.

How is exclusion of religion from public life undemocratic?

Often in American history profound political insights have flowed from free religious conscience. If the government gets to dictate religious conscience, then guess what? There's not going to be much opposition to the government. The government is going to be in the driver's seat. At our founding, we began to limit the power of the government to control conscience and opened up a whole different way of thinking about politics. Religion is not a threat to society--at least, it wasn't perceived as such in our founding period. But it is seen in this light today by some, especially the media. For example, the press rarely understands the difference between an Evangelical Christian and a Fundamentalist--they lump them all together as all those crazies who don't think intelligently about anything. It's that kind of condescending secular, liberal mind-set that shuns people for being religious. But by and large, there are many thoughtful commentators out there, such as Stephen L. Carter, author of The Culture of Disbelief. How American Law and Politics Trivialize Religious Devotion (Basic Books, 1994), who understand that a variety of religious views need space in which to thrive and grow. That's good for America.

How was religion seen during America's founding period?

First of all, America was settled by groups who were escaping the established church in their mother countries--the irony is that these outsiders came to America to establish their own churches.

An established church meant that a specific "state church" was given preference and special status under law and that the people were required to attend church services or be subject to criminal fines and sanctions. Thus, stiff penalties were imposed on anybody who wasn't a member of the established order. These laws were designed to tell people whether they were outside or a part of the community.

The movement for disestablishing religion, or removing the power of government to determine church preference, began with the American Revolution. Because of the Revolution, Americans were able to tell the state that it had limited authority and may not intrude upon people's religious conscience. That was the First Amendment; the other amendments naturally followed. We can't have a government that can tell us what to think, to believe, to say, and how to express ourselves because civil liberties are precious and important in our society. We'd be a dramatically different society if we ran a government on the basis that it could do anything. To the contrary, our tradition is that we cherish the limits we place on our government's power. That's a very basic part of the story of our founding. It's hard for us today to understand freedom from an established order unless we know exactly what an established order is. Our history was a system of "unfreedoms"--a system in which civil liberties were deprived because of religious convictions.

What were some contributions of the "fringe" religious groups in American history?

The Mennonites, who were considered on the fringe because they believed in nonviolence and that Baptism should be reserved for mature, committed adults, made some significant contributions. One of the interesting things about the Mennonites is that their religious convictions about nonviolence and Baptism had far-reaching consequences for political theory.

By breaking the overlap between church and state with a theological statement, the Mennonites were opening up a new way of seeing the relationship between church and state. Previous to these claims, it was assumed that if you were a member of the civil order, then you were a member of the church. That was Christendom. But the Mennonites challenged that idea and said in effect: "When you are baptized, you will be a good Christian only if you disobey the emperor and refuse to carry the sword to kill people." So here were members of the state who were not completely loyal, obedient members of the state.

The Mennonites set a precedent for the early Americans--Americans need only look to their history books for that. We weren't always docile to authority. To the contrary, the idea that tyranny should be obeyed has always been repugnant to the American conscience. "No taxation without representation" is a slogan from Revolutionary history we all remember. But did you know it was religious in origin? It was not primarily designed as a political comment on the parliament in Westminster, England. This slogan was designed by the Baptists and the Quakers in New England to be a theological comment on the Congregational Church of New England, the established church. They wanted to get rid of this established order--that is, the new national government would have the power to impose one preferred church. For Baptists, to be free in the exercise of their religious conscience meant that they should be free from coerced taxation to support the local established church--to be free wasn't to be a part of the Congregational Church or be taxed for it.

Are school children taught that "no taxation" had a religious connotation?

No. William McLaughlin, a scholar at Brown University, has done a major two-volume history of the Quakers and Baptists in New England. His views are not well reflected in the popular consensus. Instead, what gets peddled either in public schools, Catholic schools, or alternative schools is the history of the past shaped by a publishing industry that is obsessing over just what it is that we can and can't agree on. Currently there is a big turmoil brewing about the politically-correct character of some of these textbooks.

Part of the problem is that the religious history I'm discussing wasn't, or isn't, mainstream scholarship. People have overlooked the contributions of religious groups to politics largely because of the typically American ideal that religion is a very private concern and doesn't have societal ramifications. This privatization of religion means that the historians themselves don't look to the way in which religion has shaped culture: how Quakers abhorred slavery or how the Baptists and Quakers viewed constitutional order and the British Crown.

The absence of a subject can be as informative as its presence. And this historical ignorance has glaring consequences regarding the elimination of religious significance in history textbooks. I deal with present-day law students who are unaware that the Rev. Martin Luther King, Jr. was a Baptist pastor. They know absolutely nothing about the religious contributions of the civil rights movement. Students today have been instructed in a plainvanilla version of American history that is reduced to the lowest common denominator so as not to offend anyone. But it leaves people just plain ignorant of the facts.

What are some of the church-state issues that are shaping our culture today?

Catholic-school funding is a big one. Obviously the secular purpose of Catholic-school funding is pretty clear--it's to advance education--that one is usually an easy one for the court to agree upon. But the variety of state programs gets pretty complicated, and the court frets over the types of public assistance that go to religious schools.

The court must decide whether the primary effect of funding advances religion, entangles the government excessively, or simply advances education. The best funding mechanism empowers parental choice--that gets the government out of the business of making a cash transfer to the Catholic school--as opposed to government programs in which Catholic schools get direct funding from the government. So, you can see that it's not the money but the way it's transferred that is at issue.

In 1968 the Supreme Court ruled that state aid in the form of textbooks on secular subjects was acceptable--the same textbook on history or chemistry or physics that was being used in the public-school district could be used by children attending parochial schools, whether Lutheran, Catholic, and so on. The Supreme Court said that such aid does not violate the establishment provision because the content of those books is no different than the content of those used in the public schools.

Another issue is the problem of adequate salaries for laypeople who work in parochial schools. After Vatican II, both priests and nuns were leaving religious life because they wanted to marry and have families. And that meant that the cost of education in Catholic schools went up considerably when this previously "cheap help" had to be replaced by laypeople--who could justify raises due to the encyclicals of Leo XIII and his insistence on bargaining collectively to be paid a just wage.

Think for a moment about a really terrific lay teacher in a Catholic school. After a while, he or she may need extra funds but the parish doesn't want to jack up the tuition to the point where people can't afford a Catholic education. So pretty soon the parish loses that teacher to the public-school system, where the pay is higher.

To deal with that perceived inequity, Pennsylvania and Rhode Island came up with the idea of the government subsidizing equal pay for parochial-school teachers who taught so-called secular subjects. Note that a bright line was drawn between religious instruction and secular instruction.

This state legislation attempted to equalize the salaries of public- and parochial-school teachers. But the court invalidated this in the 1971 Lemon case, which set down three criteria for evaluating claims under the no-establishment provision. The laws passed the first two: the purpose of legislation was secular--it promoted literacy--and the primary effect wasn't to advance religion. But it failed the third standard: excessive entanglement, which meant the program involved the government in religious matters. In other words, the government would have had to determine which subjects were secular, and then set up a system to monitor all classes to make sure religion wasn't being taught.

Can we rightly use the First Amendment as a way of improving the educational system in America?

We have to devise a number of creative responses to urban educational problems, but we ought to stop relying on the First Amendment as the be all and end all of educational policy because it was designed to get the government off our backs and allow churches to thrive on the strength of their messages. I don't see why a church should receive either any benefit or disadvantage with respect to public benefits.

A study done about ten years ago by the Catholic League for Religious and Civil Rights looked at major metropolitan inner-city schools that are run by the Catholic-school system. They found that Catholic schools predominantly serve the minority populations of each city studied.

For example, a higher percentage of minority children in California go to Catholic schools than the public schools. So when people talk of Catholic schools being bastions of white racists, it's an absolutely false statement. The courts need to be made to realize this because I think the attitude the justices are operating under when deciding Catholic-school cases is that the Catholic schools are racist.

It's no surprise that since 1971 hundreds of Catholic schools have closed because they can't sustain the economic burden that was required of them by the Supreme Court's refusal to allow government funding to parochial schools. So the Supreme Court in Lemon insisted that the government's duty to keep its nose out of religion meant that the government could not directly fund a school that is engaged in religious instruction. That's a legitimate view of what nonestablishment means, but at the end of the day, one has to ask , have we won as a society?

At some point it's got to kick in that we have an educational policy that is absolutely screwy. We're using the First Amendment as a very inadequate vehicle for dealing with an educational-policy issue that is of profound significance for moving our whole national agenda forward--to cure so many of our social and economic ills. But we're using the First Amendment to defeat the very institutions that could provide an alternative and healthful solution.

What about the issue of prayer in schools?

The Jehovah's Witnesses are very much set against public-school prayer, and I was enlightened to this mind-set by my youngest daughter, Deirdre. After her first day at public school, Deirdre came home and said, "Daddy, I learned this new prayer at school today." And when I asked her to repeat it for me, she put her hand on her heart and proudly began, "I pledge allegiance to the flag . . . " All of a sudden, it kicked in. The Jehovah's Witnesses were right. There is an aspect of national spirituality that's being shaped in our schools at a very early stage--an unquestioning transcendent loyalty.

I think that the cases on school prayer were rightly and correctly decided, and I have never been supportive of any constitutional amendments to overthrow them. It's very important that the government not be in the position of promoting a particular religion--it's bad for religion and it's bad for government.

The problem of having the government in the business either of writing the prayers or promoting them is that there is a tendency to then water down religion to find something that would be acceptable to an assortment of religious claimants.

Important as it is for Christians to learn to pray with and for one another, it's better done through the ecumenical movement than by the government. I welcome the court's decision to get the government out of the business of either composing prayers or requiring them.

What are some of the cases where the government hasn't tried to establish religion but still allows the free exercise of religion?

The court has invoked the free-exercise provision in unemployment-compensation cases. The court has clarified that unemployment benefits may not be withheld from workers whose religious convictions about refraining from work on the Sabbath conflict with job assignments.

In 1963 Sherbert v. Verner marked a departure from a series of cases involving Sunday closing laws that had been decided adversely to Jews only two years before. In Sherbert the court found for a Seventh-day Adventist in South Carolina who said she wanted unemployment compensation because she was unwilling to work her job in a mill on Saturdays, which was her Sabbath--it was a violation of her conscience. The court defended free exercise of religious practice.

And the court has invoked the free-exercise provision in issues regarding the religious commitments of the family. In the 1971 Amish case, Wisconsin v. Yoder, the court yielded to the Amish parents in Wisconsin who believed in home schooling and their own teaching of the Bible and were opposed to the indoctrination of values found in public schools. The court determined that free exercise of religion allows the government to have compulsory schooling laws but does not allow the government to compel attendance by all children at a government school. The state built its case on the fact that everyone must go to state schools to insure that all the good citizens of Wisconsin are employable.

These cases are important because in the cases that had preceded them that invoked the establishment clause, the court had never required the state to take action. However, these free-exercise cases required action: South Carolina had to allow employment benefits and Wisconsin had to allow the Amish the exemption from public-school attendance. This was the drift of the case law until the 1980s when the court began to look ungenerously on religious claims. The people on the short end of the stick were Muslims, Jews, and Native Americans.

How are these groups treated ungenerously by the courts?

The Supreme Court comes out in a very hostile way against Native Americans. There has not been a hospitable regard for their religious traditions because they have so much to do with the sacred character of places. We already noted the ridiculousness of a court order to tear down St. Patrick's, but for Native Americans, their sacred grounds don't seem to carry the same weight as large Catholic cathedrals.

The government seems to have this attitude that says, in effect: "Get rid of these people because they don't share our values about land. They move around too much. They don't have our same regard for property."

In Lyng v. Northwest Indian Cemetery Protective Association, the court ruled that the free-exercise provision interposed no barrier to the government's logging and road-construction activities on lands used for religious purposes by several Native American peoples. Why weren't the sacredness of the ground and the devastating effects on traditional Native American religious practices considered by the court as they had been in other free-exercise cases? Who knows.

According to an endorsement test of the establishment provision used by the court in determining cases, the government must never convey a disparaging view of the beliefs and practices of religious communities lest they perceive themselves as second-class citizens--that, too, should have been a relative concern in this case, but it wasn't.

What other religious groups are discriminated against?

The Jehovah's Witnesses are a very vulnerable religious minority. They are not a people who have access to political power and the protection of statutes. Throughout our history different city councils and state legislatures have enacted ordinances that have made it very difficult for them to exercise their religious convictions.

The first case involving the Witnesses was the 1940 case Cantwell v. Connecticut, which invoked the free-exercise clause and marked a breakthrough in the court's attention to the brutality of political power intolerant of small, minority religious groups. This case and future cases involving Jehovah's Witnesses set precedents for the court's later stance against racial discrimination, such as later in Brown v. Board of Education.

In Cantwell the court found in favor of a Jehovah's Witness preacher, Jessie Cantwell, a street-corner preacher who was arrested for provoking an attitude of hostility while preaching and disturbing the peace. But from Cantwell's perspective, he was just speaking the truth.

The next batch of free-exercise cases dealing with the Witnesses had to do with their peddling literature. To keep the Witnesses out of town, very steep taxes were imposed by some cities and states that made it impossible for an itinerant preacher to peddle his or her wares door to door. However, the court found in favor of the Witnesses, and the taxation of the distribution of religious literature, such as the Witnesses' pamphlets, was found to be impermissible under the First Amendment's free-exercise provision because these extra expenses were seen as a way to prohibit the distribution of religious goods.

Another question before the court was whether a public university could exclude a group from meeting on campus solely because the content of its speech was religious. This was the case of Widmar v. Vincent. At the University of Missouri in Kansas City the group Cornerstone wanted to meet on campus to have Evangelical Christian devotionals--personal accounts of their lives and faith. The students were told by the dean of students, Widmar, that they could not meet on campus because the taxpayers of Missouri would be paying for their religious exercise.

But the students' response was one of disbelief: "Turning the lights on is a major expenditure of state funds?" And the official response of the university was that it wasn't that the university was biased against the group, but that they just didn't want to spend money to promote religion.

If a university wants to say that it is dedicated to the pursuit of truth in all its forms, but that the university can only be used for university classes, okay, then I guess that would be a way of handling such a case--and there's no provision in the Constitution that will compel a university to do otherwise. But if a university is set up as an open campus, then you can't make it open for some (I'm sure the Young Democrats met there) and closed for others. That's the principle of the equality of freedom of expression that the court found inherent in Widmar v. Vincent.

You seem to have a dim view of government intervention.

It's not that I want to portray government authority as evil--by and large our legislators do wise things. It's that the attention span of any legislator is typically fixed on the dollar sign. They're trying to make ends meet in a state budget and to come up with policies that are more or less sensible. But obviously every city in the country is given at least one goofy idea a year that it gets to turn into a law. The grand theory of democracy boils down to this: if our elected representatives repeatedly do foolish things, we can get rid of them.

We've got to change the way in which we conduct politics today. We don't have town-hall debates in which we have wide-ranging, free, and open discussion of complicated policy matters. Only in this way can we hope to set reasonable limits on governmental power. In many ways, the courts have disempowered political discourse by taking important issues of public concern, such as abortion, out of the normal realm of debate--such as we had in our past in town halls and schools across the country.

What's good about America's treatment of religion?

America provides the hope for the Third World. Why? Because the Third World is still populated with religious believers. I hate to say it, but religion is almost dead in Europe. But for those portions of the world where religion is still vibrant, America has a profound lesson to teach. We should be proud of our history and able to spread the lessons we have learned. We have figured out a way to set up a nation in which the government doesn't tell its people what to believe. And when it does, the people object. By and large, we Americans have enabled many diverse groups to thrive and flourish.

I think we have helpful experiences to spread to Africa, Asia, Latin America, and Eastern Europe--that it's possible to have a strong commitment to religion and a healthy regard for political pluralism. There are many instances of violations at the most fundamental level of freedom in the Third World--and I've been pretty brutal and frank about how we have gone astray from our original goal--so I can say this about Third World countries without being a cultural imperialist.

For pluralism to work, we must engage our views in the places where our views count. I don't encourage people to litigate but to involve themselves in town-hall meetings, school-board meetings, city councils, and state legislatures and to vote. We can't expect the court to fix everything that matters with some magical interpretation of the First Amendment.

The highest point of our recent history is King's "I Have a Dream Speech"--that's where we start feeling good about ourselves again: "Thank God Almighty, I'm free at last." Well, that's hope beyond hope. We've come a long way and still haven't gotten where we should be years later. But there is hope born out of deep faith, and that's what can transform our society. The connection between religion and politics in America is vital and supremely important to the kind of society we want and need. It will always be going against our true spirit to crowd out the religious concerns of all and any Americans.