The Supreme Court v. Religion: Judicial Perceptions of Belief

Yale scholar Harold Bloom asserts that: “No Western nation is as religion-soaked as ours, where nine out of ten of us love God and are loved by him in return.” While polling data give only a fuzzy picture of the state of religion in America, the numbers indicate that, despite the secularization of culture, religious beliefs and practices stubbornly persist at relatively high levels, especially in comparison with Western European countries.

While the huge aggregate of religious believers defy any facile classification and analysis, it is possible to form a fairly clear picture of how the nine justices of the Supreme Court view matters religious. Since 1947, when the Court dramatically changed its jurisprudence of the Establishment Clause of the First Amendment, religion has been one of the most litigated issues in the judicial system. Before Everson v. Board (1947), the First Amendment’s prohibition of “an establishment of religion” applied only to laws passed by the U.S. Congress; indeed, several of the states that ratified the Bill of Rights still had established churches of their own. In Everson, however, the Court incorporated the Establishment Clause, via the Fourteenth Amendment, against the states.

In his opinion in Everson, Justice Black argued that the Establishment Clause prohibits not just the establishment of a particular church by Congress, but also aid and promotion of religion “in general,” by Congress or by any other sector of government. Thereafter, the Court found itself in the unenviable position of having to determine whether one or another government action aids, promotes, or endorses some amorphous reality called “religion in general.” By its own novel interpretation of the First Amendment, the post-Everson Court was compelled to grapple with everything from tax policies to nativity scenes in public places. In short, it had to do the impossible, which was to draw clear and non-arbitrary lines not merely between church and state, but between religion and culture.

Scholars have argued that the post-Everson interpretation of “establishment” has led the Court into a mazeway of fruitless questions and conceptual dead-ends. The Court’s church-state jurisprudence, says one scholar, is marked by “contradictory principles, vaguely defined tests, and eccentric distinctions.” In terms of the craftsmanship of constitutional law, the Court seems to have lost any analytical control over the subject its aspires to adjudicate, and much of the problem is self-inflicted. A Court that finds itself having to determine, as it did in Lynch v. Donnelly (1984), whether plastic figurines and colored Christmas lights in a nativity scene constitute “religion,” is one that has lost competence over the subject.

What Is Religion?

What follows is not a review of the legal doctrines and devices, but rather an examination of the Court’s substantive (in contrast to legal) view of religion. For despite its contradictory and eccentric legal doctrines, a remarkably consistent view of religion emerges from the Court’s church-state jurisprudence of the last four decades. This view is marked by extreme skepticism of, and often by outright hostility to, religion. We might suppose ourselves to be cultural anthropologists, looking only at what religion means in the holdings and obiter dicta of the highest court. A cultural anthropologist, looking only at the data of the Court’s holdings and dicta, would have good reason to conclude that religion is something that belongs in the category of dangerous poisons or mental illnesses.

There is no better place to start than with the Court’s most recent decision, Lee v. Weisman (1992). The case originated in Providence, Rhode Island. Robert E. Lee, principal of a middle school, invited Rabbi Leslie Gutterman, of the Temple Beth El in Providence, to deliver prayers at the 1989 graduation exercises. Such invocations and benedictions were a long-standing custom. The rabbi’s prayers were in accord with the standing guidelines, requiring prayers to be composed with “inclusiveness and sensitivity.” In the invocation, he addressed the “God of the Free, Hope of the Brave.” In the benediction, he expressed gratitude to God as “Lord” for “keeping us alive, sustaining us and allowing us to reach this special, happy occasion.” Daniel Weisman, father of one of the graduates, sought a permanent injunction barring Lee and other principals from inviting clergy to deliver invocations and benedictions at future graduations. The District Court enjoined the schools from continuing the practice on grounds that it violated the Establishment Clause. The Court of Appeals affirmed. On writ of certiorari, the Supreme Court heard the case.

In his opinion for the Court, Justice Kennedy agreed with the District Court that the Establishment Clause is violated not only when government “creates an identification of the state with a religion, or with religion in general,” but also whenever “it tends to do so.” Though the prayers were entirely non-sectarian, there could be little question that they did “create,” and certainly “tended” to create, an identification between the school and religion (“in general”). While no one was coerced to pray, the prayers suggested that the invocation of divine blessing is a good and worthy thing to do on such occasions.

What is wrong with this practice? While we might expect a legal reason to be given, what is interesting is that the reasons provided not only by Kennedy, but also by Justices Blackmun, Souter, Stevens, and O’Connor in concurring opinions, had little to do with the technical apparatus of law and legal interpretation. Their reasons are almost entirely extra-legal, and whatever their judicial merit, they can be grouped under four headings.

1. Religion is divisive. Justice Kennedy reasoned that the selection of a rabbi, rather than a clergyman from some other faith, carried “the potential for divisiveness.” There was nothing in the official record to indicate that the custom of these prayers provoked any divisiveness among believers in the political community. This judicial theorem was derived neither from the facts offered by the particular case, nor from any text in the Constitution. Rather, it stands as a general supposition about religion. Indeed, in his concurring opinion, Justice Blackmun asserted: “Religion has not lost its power to engender divisiveness.” As evidence, he cited an ACLU report that, along with the issue of the death penalty, school prayer “is the only issue that elicits death threats.” Religion, it would seem, is not only potentially divisive, but potentially homicidal. (As a token of this suspicion about religion, the Time magazine cover of March 15—on the newsstands the week of the shooting of the abortionist in Florida—grouped David Koresh, Sheik Omar Abdel-Rahman, and the Bosnian war, under the heading, “In the Name of God.”) The Court’s insistent focus upon the term “potential” is revealing. Any number of different good and worthy human activities are potentially harmful to the civil community. Football rivalries, for example, can cause public disorder, and in extreme cases, a breakdown of amity between different groups of citizens. Yet no one would seriously argue that football ought to be privatized merely because of its “potential.” Rather, we tend to reserve this kind of interdiction for either inherently bad activities, or for activities which, although good and worthy, are inherently dangerous. For instance, in tort law the use of certain kinds of drugs and mechanical devices is recognized as potentially harmful, and the law requires a higher level of responsibility and precaution on the part of manufacturers.

2. Religion is coercive. The justices in the Lee majority were well aware that these same kinds of prayer are made to convene every session of Congress. Why, then, should prayer be coercive in one setting but not in the other? Justice Kennedy reasoned that adolescents (in contrast to members of Congress) are particularly vulnerable to “peer pressure.” Citing a number of social-psychological studies on teenage peer pressure, Kennedy wrote: “We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.” Once again, there is not a shred of legal argument here. But it does provide a fascinating glimpse of yet another judicial theorem about matters religious, namely, that religion, at least in its public form, is peculiarly hazardous to the psyches of children. Like alcohol and tobacco, religion is something best left to the discretionary choices of adults. Presidential and congressional occasions of prayer can be tolerated, Justice Souter added, because they can be “ignored.” Conveyed over an “impersonal medium” like radio and “directed at no one in particular,” these exercises have no religious impact. Here Justice Souter followed Justice Brennan’s remark in Lynch v. Donnelly (1984), that “In God We Trust” can be maintained on the coins because, by “rote repetition,” such emblems have lost their “religious significance.” In effect, so long as something materially religious no longer formally conveys religious messages—so long, that is, that the mind can remain entirely indifferent to its religious significance—religion can be tolerated in public things and places.

3. Religion is not rational. Justice Kennedy contended that one of the main problems with public prayer is that it drains secular events of their meaning. State-sponsored prayer suggests that “human achievements cannot be understood apart from their spiritual essence.” Hence, the state wrongfully robs non-believers, and for that matter believers themselves, of the ordinary meanings and values embedded in these transitional events of life—what he called “life’s most significant occasions.” Justice Souter amplified the point, saying that the separation of church and state requires the citizens to tolerate each other’s religious idiosyncrasies. What is crucial in the eyes of one believer is apt to be “idiosyncratic” to another. Thus, religion consists of so many oddities, like Jewish dietary laws and Amish use of horse-drawn buggies. On this view, public prayer neither counts as one of the ordinary saliences of life, nor does it enrich them. Rather, the practice hurls the mind into a realm of subjective and cultural idiosyncrasies, a realm of either the suprarational or irrational, which tends to militate against appreciation of ordinary values. Governmental sponsorship of prayer, averred Justice Blackmun, “transforms rational debate into theological decree.” This is unbecoming to the mission of a public school in a democracy.

4. Religion can mean whatever an individual wants it to mean. Justice Souter maintained that the middle schools in Providence wrongfully endorsed “Theistic religion.” The Rabbi paraphrased the Bible, and in so doing he necessarily offended those who consider themselves religious, but not theistic. Religion “in general”—a rather wide net—must include the beliefs of those whose religion is either non-theistic or atheistic. This approach to the definition of religion would be farcical if it were applied to contract and probate law. But the main point to be noted here is that religion, at least for the purposes of First Amendment jurisprudence, can mean whatever an individual fancies—including beliefs and attitudes which have no connection to a deity. How government could ever establish or disestablish something this nebulous and subjective is a question left unanswered.

According to the dicta of the majority in Lee v. Weisman, the picture of religion is easily summarized. Religion is a potentially dangerous and harmful phenomenon. It is apt to engender divisiveness, even homicidal urges, in the political community. It threatens the psychological health and development of children. It tends to subvert the ordinary meanings and values of life. It is not rational, but rather subjective and idiosyncratic. It is contrary to the institutions of democracy. And whatever reality it has, it tends to elude even the most ordinary dictionary definitions.

If the majority’s view is roughly correct, then perhaps it did not do the right legal thing (for there is no constitutional argument for its verdict), but it certainly did the right moral thing, because it helped the civil community to expurgate a potentially dangerous and irrational activity. This is a harsh and shocking estimation of religion. There is no sense of why religion should be a public good, nor, taken at its face, why religion should be something prized by individuals even at the private level. If an anthropologist from another culture had to rely only upon the dicta of Lee v. Weisman to ascertain what our culture means by religion, he or she would have good reason to put religion in the same category with poisons and mental diseases. Indeed, were one to survey the Court’s dicta about obscenity, he would find that obscenity is rarely described in terms as forbidding as is religion.

Of course, one can rummage around in Supreme Court dicta to prove almost any kind of proposition. The post-Everson Court’s holdings on church-state issues typically run from 50 to 75 pages in length. Not unlike the Congressional Record, a miscellany of different facts and speculations are deposited in the text and notes of these official opinions. Since 1947, there have been 30 Supreme Court justices from an array of different denominational affiliations. While they have disagreed about particular church-state cases, and while many have complained that the jurisprudence of religion has become too complicated, the approach generally has been consistent with Lee v. Weisman. Consistent, that is, with these extra-legal suppositions about the nature and value of religion. Of course, there have been justices who perceived religion differently. In McCollum v. Board (1948), Justice Reed filed a dissent warning that the Court was trying to separate religion and culture. In Wisconsin v. Yoder (1972), Chief Justice Burger tried to affirm something resembling the traditional value of religion. Moreover, some of the justices most inclined to portray religion in forbidding terms do from time to time say something to the contrary. Justice Douglas, for example, delivered the often cited dictum: “We are a religious people whose institutions suppose a Supreme Being” (Zorach v. Clauson, 1952). In fact, as recently as three years ago, in Allegheny v. ACLU (1989), Justice Kennedy faulted the Court for “an unjustified hostility toward religion.” Nevertheless, the Court’s record over the past four decades confirms the summary we sketched of Lee v. Weisman.

Further Dangers of Religion

Some of the key cases of the post-Everson Court illustrate the persistence of these ideas that religion is divisive, coercive, irrational, and something that eludes objective definition. For example, perhaps even more than Everson, the case of McCollum v. Board (1948) exemplified the new legal and social propositions of church-state jurisprudence. In Champaign, Illinois, an interdenominational association of Protestants, Catholics, and Jews obtained permission from the Board of Education to offer classes in religious instruction to public school children between fourth and ninth grades. No public monies were expended for the catechists. Only pupils whose parents signed permission cards were allowed to attend the weekly classes. Non-participating students were required to go elsewhere in the school building to pursue “secular study.” The record showed no divisiveness among religious believers. If anything, the program seemed to be a model of ecumenism and religious amity.

Vashiti McCollum, whose child was enrolled in the public school, filed suit against the Champaign Board of Education, claiming that the program violated the Establishment of Clause of the First Amendment. Although the State Supreme Court ruled in favor of the program, the Supreme Court found it to be unconstitutional. Justice Black delivered the opinion of the Court. He opined that the program “affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the State’s compulsory public school machinery.” According to Black, the offices of the state may never be used to aid religion. And for Black, it was clear that making it easier for ministers and rabbis to catechize their faithful counts as “aid.”

The most interesting opinion in McCollum, however, was filed by Justice Frankfurter, who concurred with the majority. A harbinger of the future pattern of jurisprudence, Frankfurter’s dictum represented a new way for the Court to call to mind certain theorems about religion which have no basis in either the text or history of the Constitution. Justice Frankfurter contended that the Champaign program “sharpens the consciousness of religious differences at least among some of the children committed to its care.” And these are “precisely the consequences against which the Constitution was directed.” “Good fences,” he added, “make good neighbors.” According to Frankfurter, the chief problem with the presence of even voluntary religious activities in public institutions is that it makes students aware of their differences along religious lines. In a word, religion is divisive. Its divisiveness stems not only from the fact that it causes overt conflict among believers. Rather, the divisiveness arises at the spiritual and psychological level. The very “consciousness of religious differences” alienates the citizens from their secular unity. Frankfurter was not just speaking about non-believers, who are made to feel like outsiders by the presence of religion in the schools. He was speaking generally, so as to include religious believers as well.

Thus he went on to opine that religion subverts a primary “symbol of secular unity.” Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of government from irreconcilable pressures by religious groups, of religion from censorship and coercion however subtly exercised, requires strict confinement of the state to instruction other than religious, leaving indoctrination in the faith of his choice to the individual’s church and home. Of course, this is not strictly a legal proposition. Nothing in either the Constitution or in the 150 years of previous case law (prior to 1947) would provide even the slightest grounds for these notions. Indeed, Madison’s famous Federalist 10 argued quite to the contrary: the Constitution does not have as its goal the elimination of factions, whose deepest roots lie, Madison said, in differences of property. Instead, the multiplicity of religious sects, Madison contended, would tend to ameliorate rather than exacerbate the harmful effects of religious faction, just as the multiplicity of propertied interests tends to inhibit a majority faction of, say, cotton-growers. The Federalist Papers are a monument to the proposition that strife-avoidance is not a principal goal of government, for that would require the government to be built upon foundations contrary to human nature.

The notion that religion is not only peculiarly divisive but also unbecoming to the mental and moral culture that ought to be fostered in public schools resurfaced in particularly sharp form in Lemon v. Kurtzman (1971). The case was important, among other reasons, because it provided the occasion for the Court’s three-pronged “test” for Establishment Clause cases. The case dealt with Pennsylvania and Rhode Island statutes that provided state aid to church-related elementary and secondary schools. The aid consisted of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects.

The Court asserted that to satisfy the First Amendment, a governmental practice must (a) reflect a clearly secular purpose, (b) have a primary effect that neither advances nor inhibits religion, and (c) avoid excessive entanglement. In explaining “excessive entanglement,” Chief Justice Burger argued that government must avoid intensifying “[p]olitical fragmentation and divisiveness on religious lines.” Thus, while “potential” divisiveness had been an implicit standard in the Court’s jurisprudence since McCollum, it now became an explicit “test,” one still used by the Court.

With regard to divisiveness, Chief Justice Burger argued that while “political debate and division, however vigorous and even partisan, are normal and healthy manifestations of our democratic system of government… political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” Even the “potential” for such division, he concluded, “is a threat to the normal political process.” Perhaps the Chief Justice was the unintended victim of his own rhetoric here, but the argument he makes necessarily presumes that the division of citizens according to their religious sensibilities is an “evil”—at least for ordinary civil institutions. Note that Burger, like Frankfurter, did not say that religion might be divisive. He argued as though this is a settled truth, a fact about the real world, that makes the First Amendment intelligible.

In Lemon, Justices Douglas and Black supplied a clue to the reason why religion is dangerous. Referring to Catholic schools, they wrote:

The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think.

On this view, religious education is indeed contrary to the ideals and purposes of ordinary education. Justices Douglas and Black did not suppose that religious and secular education share common tasks. (An overlap of common tasks would provide grounds for believing that some aid to religious schools, at least in that part that concerns secular subjects, would be a common benefit). Rather, parochial education was regarded as a regime of closed-minded propaganda. Although Douglas and Black conceded that religious educators might be “good, zealous people,” one is nevertheless struck by the fact that, on their characterization of the matter, it would be difficult to justify religious education even at the private level.

Interestingly, on the same day that Lemon was decided, the Court handed down a decision in a related case, Tilton v. Richardson (1971), which concerned the constitutionality of federal funding for Catholic colleges in Connecticut. In Tilton the Court decided that federal support for Catholic colleges did not violate the First Amendment. Trying to explain this apparent contradiction, Chief Justice Burger offered two observations. First, the Catholic colleges consist of students who are older, and therefore more immune to religious coercion. Second, the problem of divisiveness tends to be more acute in local primary and secondary schools than in colleges and universities. For these reasons, we can take a more relaxed view of the Establishment Clause. To the extent that religion is diluted, in other words, it can be admitted into the proximity of public institutions.

Earlier, in connection with Lee v. Weisman, we found Justice Blackmun warning that religion prompts homicidal urges. This is, of course, divisiveness in the highest degree. A similar conviction was expressed by Justice Stevens in his dissent in Webster v. Reproductive Health Services (1989). The “intensely divisive character of much of the national debate over the abortion issue,” he asserted, “reflects the deeply held religious convictions of many participants in the debate.” Of course, there is no reason to quarrel with Steven’s observation that the abortion issue is intensely divisive. Political parties, churches, professional organizations, and the Supreme Court itself, are polarized over abortion. It is the very symbol of the so-called “culture wars.” Justice Stevens simply took it for granted that the divisiveness over abortion is a symptom of “religious convictions.” Why should religious convictions prove so divisive? Justice Stevens wrote: “Indeed, I am persuaded [of] the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization….” Although Stevens himself seems to collapse issues of embryology into theology, his line of thought is clear. Religion does not follow the ordinary canons of rationality. Rather, it is an occult domain of value judgment forced upon public debate. Hence, like dietary laws and horse-drawn buggies, religious “reasons” for pro-life legislation represent the imposition on the public of arbitrary, idiosyncratic, and subjective beliefs. No wonder that abortion tends to arouse such implacable and furious emotions.

The notion that religion somehow defies ordinary canons of reason has frequently emerged in Free Exercise cases. In Thomas v. Review Board (1981), for example, Chief Justice Burger wrote for the majority of the Court in a case that concerned a Jehovah’s Witness who left his job because his religious beliefs forbade making turrets for military tanks. When the State of Indiana denied him unemployment compensation, he contended this action violated his right to the free exercise of his religion. The Court found in favor of Mr. Thomas. Whether or not this particular decision was good jurisprudence, it is important to examine Burger’s effort to wrestle with Thomas’s inability to articulate with any clarity his “religious” beliefs as they affected his case. Burger wrote: “the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

There is some virtue to this assertion if Burger meant that the free exercise of religion is not protected because a court has determined what is reasonable in matters religious. But Burger’s dictum is often cited to a quite different effect, namely, that religion need not be comprehensible to anyone other than the person making the claim that he or she is religious. Or as Professor Laurence Tribe has put it in reference to the Thomas decision, religion concerns “faculties beyond reason.” It is one thing, however, to acknowledge the fact of religious and theological pluralism in a society; it is quite another to suggest that religion lacks objective, rationally ascertainable grounds; that it is somehow locked into a private, subjective, and idiosyncratic world of individual belief; and that it must necessarily elude any public standards of truth and falsity. If religion can mean virtually anything that an individual fancies, then religion can mean virtually anything, including beliefs which are seemingly unconnected to any commonsense definition of religion.

Yet this is precisely what the Court has said about religion. After Congress permitted religious exemptions from military service for pacifists who held religious beliefs “in relation to a Supreme Being,” the Court declared in United States v. Seeger (1965) that one can qualify for religious exemption so long as the “belief… is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Since religion does not require a belief in, or worship of a deity, the law need only inquire into whether the belief or practice is held religiously; that is to say, with personal sincerity. It is entirely immaterial whether the individual conscience is bound by a personal, law-giving God, or whether it is bound by the aesthetics of nature.

This view of religion has led to surprising and contradictory results in other cases. For example, in Lynch v. Donnelly (1984), the majority of the Court found that a nativity scene in Pawtuckett, Rhode Island, was not religious because it amounted to nothing more than a “passive symbol” that could be construed in any number of ways according to the perceptions of the observer. Materially, of course, a nativity scene, consisting of the Christ child receiving the adoration of shepherds and kings is religious. The armchair epistemologists on the Court had to presuppose that the formal meaning of religion is conferred by the observer. And so long as the material symbol does not necessarily trigger religious perceptions on the part of observers, it is not, for the purposes of First Amendment jurisprudence, an issue of religion. Yet in Wallace v. Jaffree (1985), a minute of silence in public schools was deemed religion, since the subjective intent of one of the Alabama legislators was to bring religion back into the schools. Here, the material act was in no way religious, but it became so by dint of the subjective intent of the lawmakers.

Even more curious is the fact that the Court has, in large part, accepted Justice O’Connor’s standard of the “objective observer.” She has insisted that the Court must ascertain whether an “objective observer” would construe the state action as an endorsement of religion. The problem is that such an observer is already ruled out by the Court’s presumption that religion stems only from private perceptions that are subjective and non-rational. Clearly, if a nativity scene need not count as religion, but a minute of silence must, there are no grounds for objective observers in matters religious.

In the District Court case Smith v. Board (1987), Judge Brevard Hand allowed secular humanism to be counted as religion, since it involves propositions about the nature and purpose of man, as well as about the origin and purpose of the universe. Dozens of expert witnesses testified, with some plausibility, that secular humanism functions sociologically and psychologically like a religion. Fifteen years earlier, Justice Douglas—no proponent of church-state entanglement—had insisted in Wisconsin v. Yoder (1972) that it is arbitrary to exclude someone like Henry David Thoreau from the category of religious belief. Judge Hand only followed the adage that what is good for the goose is good for the gander: if orthodox beliefs are to be excluded from civil life, then it would only seem fair to exclude heterodox ones. Of course, if this is taken literally, then almost every act of government, with the possible exception of its institution of a common standard of weights and measurements, involves establishment of religion. In Lee v. Weisman (1992), Justice Kennedy proposed that religion amounts to the conviction that “there is an ethic and a morality which transcend human invention.” This implies that any belief in objective principles of morality must necessarily count as a religion. In that case, the principled grounds for laws against murder, slavery, and confiscation of property without due-process—not to mention protection of religious conscience itself—are nothing but religious in nature. If so, they should be forbidden by the First Amendment.

Much legal and conceptual chaos ensues from this arbitrary and whimsical view of religion. Imagine, by comparison, what would happen to criminal law if the doctrine of criminal intent were believed to have no ascertainable relation to objectively defined meanings of assault or larceny. Or what would become of the jurisprudence of free speech if the Court was unable to objectively classify the various species of speech—commercial, political, obscene, etc.—and then to determine the varying First Amendment protection each kind should receive. Whatever defies objective definition cannot be brought under ordinary canons of rationality, and in that case, no rational law could be written or obeyed for the matter in question. Intentionally or unintentionally, the Court has taken the view that in religion there is only a night in which all cows are black.

Professor Gerard Bradley has argued that

“Separation of Church and state,” walled or otherwise, is a notion possible only in societies that (1) have clearly differentiated the sacred from the profane, where God’s due and Caesar’s are distinguished, (2) have a state in the Western sense that is clearly distinguished from society and culture, a concept of state that begins only with the sixteenth century, and (3) that organize religion into some concrete institution properly denoted a church.

Bradley is surely correct about the historical and philosophical prerequisites of the Establishment Clause of the First Amendment. If church means “religion in general,” and if religion can mean anything that an individual construes to be of ultimate importance, then there is nothing to establish or to disestablish. If conscience can mean whatever the individual sincerely believes, without reference to obligations rooted differently in divine or in human authority, there is no rational way to delimit the “free exercise of religion.”

In short, the Court not only evinces an arbitrary and unnecessarily hostile approach to religion, it ultimately backs itself into the corner of having no subject to adjudicate. This is the price paid for depicting religion as something intractably idiosyncratic and subjective.

The Source of the Court’s Perceptions

In sketching some of these judicial perceptions of religion in the post-Everson cases, we have not tried to determine whether any of them have legal merit or demerit. Rather, we have shown that they manifest an exceedingly skeptical and hostile view of religion. While we might doubt that their jurisprudence of religion has any consistent rhyme or reason, the dicta are remarkably consistent. They reflect a view of religion shaped by a legal mind totally dependent upon the patchwork of precedents and dicta of its own case law.

It would be foolish to suggest that law is not in large part an artificial world of human contrivance. Human laws seek to determine legal meanings and definitions, and are not necessarily the best place to look for real and primary definitions of reality. For instance, if one were to rely only upon probate law to understand the nature and value of relationships between parents and children, one would have a distorted picture of reality; rules of criminal procedure do not constitute the basic meanings of what is good or wicked in human acts. By the same token, First Amendment jurisprudence (even were it in a healthy condition) is not the best place to begin an enquiry into the nature and value of religion. Yet the contrivances of law are meant to serve reality. They are instruments of order, and as instruments of order they are worthless unless connected to the real world.

A legal proposition is a doctrinal formulation of the law. It is a doctrinal proposition, for example, that the Constitution forbids an establishment of religion. A social proposition, on the other hand, is a proposition about reality that is brought to the law. That religion is divisive and subjective is an example of a social proposition. All legal actions (making, administering, and adjudicating laws) involve both doctrinal and social propositions. Therefore, I am not suggesting that there is anything especially spurious about the adjudicative appeal to, and reliance upon, social propositions. Rather, I am highlighting the spurious nature of this particular set of social propositions. What is remarkable about the current judicial picture of religion is its lack of connection to primary legal texts, to history, or to the actual beliefs and practices of the people. Even its doctrinal propositions appear to be nothing but the social propositions of an elite class who (to give them the benefit of the doubt) have no sense of religion. Only someone who has no confidence in his grasp of the subject could seriously speak of “religion in general,” or believe that the place of religion in society can be measured by an ACLU report on death threats allegedly arising from religionists, or that children are coerced if put in the vicinity of religious exercises, or that icons of Christ are not religious.

Although the judicial perceptions have little or nothing to do with a living sense of any practiced religion, they do generally reflect the biases of their social class. In A Common Faith, John Dewey insisted that the meaning of “religious” needs to be emancipated from the substantive term “religion.” Dewey wrote that “religion”:

…always signifies a special body of beliefs and practices having some kind of institutional organization, loose or tight. In contrast, the adjective “religious” denotes nothing in the way of a specifiable entity, either institutional or as a system of beliefs. It does not denote anything to which one can point…. It denotes attitudes that can be taken toward every object and every proposed end or ideal.

By reducing the value of religion to the values of religious attitude, Dewey hoped to retain what is prized in human experience without the “encumbrances” of “supernatural channels.”

According to Dewey, so long as religious experience and perception are connected to beliefs in the supernatural, religion will prove harmful to the institutions of democracy because religion in its traditional guises, (a) must swear allegiance to exclusive rather than to inclusive ideals, (b) abide by a doctrinal method that is “limited and private” rather than “open and public,” and (c) adopt a stance toward social reality that is essentially punitive and divisive. Speaking of the tendency of religion to subvert the ordinary values of life, Dewey noted: “A body of beliefs and practices that are apart from the common and natural relations of mankind must, in the degree in which it is influential, weaken and sap the force of the possibilities inherent in such relations.” This sounds like it was paraphrased by Justice Kennedy for his Lee v. Weisman opinion.

There is no indication that Justice Kennedy and his colleagues read John Dewey before drafting their opinions in Lee v. Weisman, but their presuppositions about religion are virtually indistinguishable from Dewey’s. Dewey, to his credit, never disowned the fact that he was a cultured despiser of traditional religion. He never pretended that his point of view represented descriptive truths of what the American people believe about things religious. His was an abstract, philosophical approach to what he believed to be an enlightened attitude toward religion. The problem with the Court’s approach is that it fails to acknowledge the philosophical presuppositions which animate it. The Court takes these presuppositions as the established and indubitable truths of social reality. To this extent, they are a matter of neither philosophy nor law. Rather, they are prejudices, which finally look like the worst features of what they themselves mean by “religion.”


  • Russell Hittinger

    Russell Hittinger is the William K. Warren Professor of Catholic Studies at the University of Tulsa.

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