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By John Burton
When Joseph Lieberman said
while campaigning in Michigan that "the Constitution guarantees freedom
of religion, not freedom from religion," he revealed that the Democratic
presidential ticket, no less than the Republican, is hostile to the
democratic traditions on which this nation was founded.
As disciples of the
Enlightenment and dedicated rationalists, the Constitution's framers viewed
the injunction against government support of any religious ideology as
foundational for the new democracy. They demonstrated the importance of the
prohibition against the establishment of religion by placing the
Establishment Clause first in the Bill of Rights.
The Establishment Clause grew
out of the political revolution that accompanied the armed struggle for
independence from England. Even though many early settlers fled Europe
because of compulsory support for government-established churches, these same
practices continued in the colonies. With the declaration of political
independence from England in 1776, a wave of Enlightenment-inspired
legislation swept through the former colonies. James Madison drafted and
pushed through Virginia's Declaration of Rights, the first official
legislative pronouncement that freedom of conscience and religion are
inherent rights of the individual. As a result, on Jan. 1, 1777, the Virginia
Episcopalian Church was denied its tithes.
After the military defeat of
England, the Virginia Episcopalian Church sought to renew compulsory support,
but was met with protests from other sects. Deals were made. In 1784, the
Virginia Legislature proposed the Assessments Bill, which imposed a tax to
support religious education, but let each taxpayer decide which church was to
receive it. In that way, the Assessments Bill was very much an assertion of
freedom of religion, but not freedom from religion.
Madison opposed this bill
because it placed a government imprimatur on religion, violating the inherent
rights of people to determine their own beliefs free of governmental
interference. In his famous "Memorial and Remonstrance Against Religious
Assessments," he explained that the "Religion ... must be left to
the conviction and conscience of every man; and it is the right of every man
to exercise it as these may dictate. This right is in its nature an
unalienable right. It is unalienable; because the opinions of men, depending
only on the evidence contemplated by their own minds, cannot follow the
dictates of other men."
Accordingly, "in matters
of Religion, no man's right is abridged by the institution of Civil Society,
and that Religion is wholly exempt from its cognizance." Madison wrote
that "Rulers who are guilty of such an encroachment" are
"tyrants," and "people who submit to it ... are slaves."
He also explained that government sponsorship of religion violated "that
equality which ought to be the basis of every law." He wrote, "If
'all men are by nature equally free and independent,' all men are to be
considered as entering into Society on equal conditions; as relinquishing no
more, and therefore retaining no less, one than another, of their natural
rights. Above all are they to be considered as retaining an 'equal title to
the free exercise of Religion according to the dictates of conscience.'"
The "Remonstrance"
leaves no doubt about the importance Madison attributed to defeating the
Assessments Bill.
So potent was Madison's
"Remonstrance" that instead of enacting the Assessments Bill, the
Virginia Assembly passed Thomas Jefferson's A Bill for Establishing Religious
Freedom. This historic law provided "That no man shall be compelled to
frequent or support any religious worship, place, or ministry whatsoever, nor
shall be enforced, restrained, molested, or burdened, in his body or goods,
nor shall otherwise suffer on account of his religious opinions or
belief."
The Supreme Court has written
often that the Establishment Clause is itself the product of the
"Remonstrance," and must be read in the light of it. Only by
sweeping away the history of this critical advance in the development of
American democracy can Lieberman and others of his ilk maintain that the
Constitution does not guarantee "freedom from religion."
The Supreme Court has not
always been at the forefront of defending democratic rights, but it usually
echoes the spirit of Madison's "Remonstrance." Everson v.
Board of Education, 330 U.S. 1 (1947), is the first Supreme Court decision
applying the Establishment Clause to states. Although the court upheld 5-4 a
state subsidy of school transportation, including religious schools, Justice
Hugo Black's majority opinion still reaffirms Madison's freedom of thought.
"Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one
religion over another. Neither can force nor influence a person to go to or
to remain away from church against his will or force him to profess a belief
or disbelief in any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or
non-attendance. ... In the words of Jefferson, the clause against establishment
of religion by law was intended to erect 'a wall of separation between Church
and State.'"
Justice Wiley Rutledge's
dissent argued that the majority was not going far enough. "The
Amendment's purpose was not to strike merely at the official establishment of
a single sect, creed or religion, outlawing only a formal relation such as
had prevailed in England and some of the colonies. Necessarily it was to
uproot all such relationships. But the object was broader than separating
church and state in this narrow sense. It was to create a complete and
permanent separation of the spheres of religious activity and civil authority
by comprehensively forbidding every form of public aid or support for
religion."
Following Everson, the
Supreme Court will not tolerate any governmental preference for religious
views. For example, Black, writing for a unanimous court striking down a
Maryland law requiring notaries public to affirm a belief in God, stated that
"neither a State nor the Federal Government can constitutionally force a
person 'to profess a belief or disbelief in any religion.' Neither
can constitutionally pass laws or impose requirements which aid all religions
as against non-believers, and neither can aid those religions based on a belief
in the existence of God as against those religions founded on different
beliefs."
One year later, the court
invalidated a New York law mandating a "nondenominational" prayer
at the beginning of the school day. Again, Black wrote for the court: "The
history of governmentally established religion, both in England and in this
country, showed that whenever government had allied itself with one
particular form of religion, the inevitable result had been that it had
incurred the hatred, disrespect and even contempt of those who held contrary
beliefs."
In 1968 a unanimous Supreme
Court ruled unconstitutional an Arkansas law prohibiting the teaching of
evolution in public schools. Justice Arthur Goldberg made clear that the
First Amendment guarantees "freedom from religion" as well as
"freedom of religion." "Government ... must be neutral in
matters of religious theory, doctrine, and practice. ... The First Amendment
mandates governmental neutrality between religion and religion, and between
religion and nonreligion."
More recently, in Wallace v.
Jaffree, 472 U.S. 38 (1985), Justice John Paul Stevens explained,
"Just as the right to speak and the right to refrain from speaking are
complementary components of a broader concept of individual freedom of mind,
so also the individual's freedom to choose his own creed is the counterpart
of his right to refrain from accepting the creed established by the majority.
At one time it was thought that this right merely proscribed the preference
of one Christian sect over another, but would not require equal respect for the
conscience of the infidel, the atheist, or the adherent of a non-Christian
faith such as Islam or Judaism. But when the underlying principle has been
examined in the crucible of litigation, the Court has unambiguously concluded
that the individual freedom of conscience protected by the First Amendment
embraces the right to select any religious faith or none at all. This
conclusion derives support not only from the interest in respecting the
individual's freedom of conscience, but also from the conviction that
religious beliefs worthy of respect are the product of free and voluntary
choice by the faithful, and from recognition of the fact that the political
interest in forestalling intolerance extends beyond intolerance among
Christian sects - or even intolerance among 'religions' - to encompass
intolerance of the disbeliever and the uncertain."
Even the current Supreme
Court, the most reactionary since before World War II, has refused to back
down on the court's protection of "freedom from religion." Just
this year, in Santa Fe Independent School District v. Doe, the
court ruled that a public high school cannot allow "voluntary"
student prayers over its loudspeaker system at football games.
John Burton is a
Pasadena civil rights attorney.
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