America: Fundamentally Religious

by Gary Glenn and John Stack

A host of publically affirmed expressions of faith underscore the preeminent role of religion in American life dating back to the founding.

udicially imposed public secularism, America's new philosophy, relegates religion to a purely private affair. Religion still stubbornly maintains a place in our public life, however. Whether the public religious traditions that Americans have maintained are symbolic gestures or religiously significant, many Americans continue to practice their faith in public.
    Students in public schools may pray privately in class or in the cafeteria over lunch, if they do so silently. They also have the opportunity to study the Bible as literature, comparative religions, and the philosophy of religion. In high schools throughout the nation, thousands of religious clubs congregate after instructional hours, so long as other extracurricular clubs are also allowed to meet.
        The congressional and military chaplaincies still in existence trace their origins back to the First Congress. President Eisenhower added "under God" to the Pledge of Allegiance, and President Lincoln added In God We Trust to our coins. Many political speeches, especially those given by presidents, continue to employ religious rhetoric. In his 1992 State of the Union message, George Bush proclaimed, "By the grace of God, America won the Cold War." President Clinton has also found occasion to use the rhetoric of religion, particularly when speaking to African-American Baptists.
        The Supreme Court occupies a courtroom that posts the Ten Commandments. In 1993, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA), making it more difficult for government to prohibit conduct motivated by religious beliefs. In 1996, the Supreme Court declared the RFRA unconstitutional, implying that the Court, not Congress, defines religious liberty. Undeterred by the Court's attempt to supplant the people and their elected representatives, the House of Representatives recently passed the Ten Commandments Defense Act, which would allow public officials to display the commandments in classrooms and other government venues.
        Three of our national holidays are importantly religious. Thanksgiving is "a national holiday for giving thanks to God" and Christmas is "the annual festival of the Christian church commemorating the birth of Jesus; celebrated on December 25 ... now generally observed as a legal holiday" (Random House Dictionary of the English Language). Christians have maintained the religious tradition of displaying the creche at Christmas and Jews the menorah during Hanukkah, though nowadays they are usually required to share public space with Santa and his reindeer. We also celebrate the Reverend Martin Luther King Jr.'s life with a national holiday.


        The faith of our fathers


        The late M.E. Bradford argued that 50 of the 55 framers of the U.S. Constitution were Christians "and that their political philosophies were deeply influenced by their religious convictions." That may be a stretch, however, since many of the founders leaned toward deism. Catherine Albanese pointed out that at least 52 of the 56 signers of the Declaration of Independence were Masons.

Nonreligious elites and those who dissent from the religious views of the majority lack the power to remove religion from public life through the democratic process, so they do so through judges.

        Whatever the particular faith of individual founders, they more or less subscribed to the same morality. James Madison made explicit the connection between this shared morality and America's future: "We have staked the future of all our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God" (June 20, 1785).
        Thomas Jefferson pointed out in his first inaugural address that Americans were "enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man." Tocqueville, the celebrated analyst of American democracy, later observed the same phenomenon, noting that in the United States "all [sects] preach the same morality in the name of God."
        Tocqueville detected a "strict Puritanism that presided at the birth of the English colonies in America." This Puritanism flexed its political muscle by passing blue laws to encourage citizens to keep the Sabbath and penalize blasphemy, gaming, and idleness. The weight of public opinion put teeth in these measures, to such an extent that Tocqueville noticed that on Sunday, American trade and industry ceased altogether.
        Tocqueville observed that the opinions of the "Puritan founders of the American republics ... have left deep traces on the minds of their descendants." The powerful influence of this Puritan spirit in the late nineteenth and early twentieth centuries fueled the Prohibition movement and the ill-fated Eighteenth Amendment to the Constitution. Nevertheless, our Puritan spirit is still with us--only now it focuses on different objects than it did earlier.
        Contemporary American attitudes toward drugs, tobacco, and alcohol are far less tolerant than those found in non-Puritan Western countries. Americans who risk longevity for the pleasure of engaging in these particular vices are taxed more heavily than are their counterparts in non-Puritan Western countries. Of course, Americans find it ever more difficult to keep the Sabbath holy in an increasingly money-oriented culture, and this is due, at least partly, to the Supreme Court. In Estate of Thornton v. Caldor, Inc. (1985), the Supreme Court struck down a Connecticut statute mandating that employers make efforts to allow their employees to observe the Sabbath.


        Why Americans have kept some public religious traditions and abandoned others


        This question has been answered more by unelected cultural and legal elites than by either the American people as a whole or their elected and removable representatives. Nonreligious elites and those who dissent from the religious views of the majority lack the power to remove religion from public life through the democratic process, so they do so through judges.
        In the 1940s, under prodding from such elites, the Supreme Court began to secularize American democracy. Secularism, according to the Oxford English Dictionary, is "the doctrine that morality should be based solely on regard to the well-being of mankind in the present life, to the exclusion of all considerations drawn from belief in God or in a future state." This concept did not exist at the time of America's founding. It came into being only in 1851 in the work of G.J. Holyoake, who sought a word "expressing a certain positive and ethical element, which the terms 'infidel', 'sceptic' and 'atheist' do not express." Thus, when judges impose secularism, they are not enforcing the Constitution as the people consented to it. They are enforcing what they believe to be good policy.
        The Supreme Court imposed secularism on American democracy through a novel and frankly unprecedented reading of the First Amendment's establishment clause. First, in 1940 the Court invented a wholly new constitutional category called "civil liberties." This notion of liberty permitted one person, who might find offensive the public expression of widely held communal religious beliefs, to trump and thereby prohibit expression of those beliefs in public space, especially schools.
        Civil liberties secularism has rendered revealed religion incompatible with any significant place in public life. That is, religious believers may follow their religious beliefs in public affairs only insofar as they agree with secularism. Particular religious beliefs are "sectarian" and hence impermissible public policy.
         The new civil liberties secularism is in striking contrast to liberty traditionally understood as civil liberty. The latter is the language of Blackstone, the common law, and The Federalist, which speak of it in the context of the problem of maintaining "the order of society."
        Civil liberty first appears in John Marshall's opinion in Marbury v. Madison (1803), but not until the Slaughterhouse Cases (1873) is it given explicit judicial definition. "Civil liberty is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public." It is "that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just and impartial laws."
        The key point is that liberty understood as civil liberty did not privilege an individual's power to the extent of requiring the laws to grant it as much latitude as possible. The laws only had to be "equal, just and impartial," thereby giving as much emphasis to restraints of such laws on an individual's power as to his license to exercise that power. The modern civil liberties idea that "rights are trump" is alien to civil liberty.
        The Court's new secular regime requires that all Americans understand religion as a wholly private matter lacking either public encouragement or consequence. The seed of this view was planted in Everson v. Board of Education (1947), which said that the establishment clause mandated government neutrality between religion and nonreligion.
        This meant that, in public life, nonreligion would constitutionally dominate over religion. The first manifestation of this domination was finding unconstitutional government-sponsored religious instruction in public schools in McCollum v. Board of Education (1948). The easily discernible domination was finding unconstitutional publicly sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington Township v. Schempp (1963).

Judicially imposed public secularism rejects the public religious pluralism established by the founders, who considered morality fostered by religion as a foundation for, rather than a barrier against, democratic government that is also free.

        The civil liberties regime replaces constitutionally permitted public religious pluralism with constitutionally mandated public secularism. This regime's novelty is indicated superficially by its name. Although now a preeminent category of constitutional law, civil liberties first appears as a term of art in a Supreme Court opinion only in 1940. Prior to that time, according to then Professor Felix Frankfurter, civil liberties was only "a very loose expression" used in communication with "the laity." Later Justice Frankfurter introduced civil liberties into our constitutional law, thereby laying secularism's foundation.
        We have public religious traditions because the old civil liberty regime permitted the relation of religion to public life to be defined by local representative bodies, state legislatures, and Congress. This permitted religion significant expression in public life. It assumed a public religious pluralism, which permitted legislatures to work out pragmatically the relation between religious belief, churches, and government without conforming to a constitutional theory of what that must be. This religious pluralism meant that the Constitution was neutral between religious sects. The situations of the religious sects were determined politically, not constitutionally. But government was not constitutionally required to be neutral about morality. The Supreme Court justified Congress, outlawing Mormon-approved "bigamy and polygamy, which are crimes by the laws of the civilized and Christian countries" (Davis v. Beason, 1890).
        Public religious pluralism, not public secularism, was the constitutional relation between religion and democratic government that Madison defended in The Federalist 51.

In a free government, the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.