CHAPTER 1
A Secular Government for a Religious People
Justice William O. Douglas famously said that "We are a religious people whose institutions presuppose a Supreme Being." The justice was half-right. We are a religious people. Although studies show increasing rates of those who identify as atheist or agnostic, we still have rates of religious belief and observance that consistently rank the United States among the most religious countries in the developed world. Religious movements have played central roles throughout American history, from the first European settlements through abolitionism to the contemporary debates over abortion and same-sex marriage. Indeed, many people believe deeply that the nation itself, including its government, has special religious significance.
But Justice Douglas was also half-wrong. Our political institutions do not "presuppose" a Supreme Being. The Constitution does not mention a deity, and the institutions described in that founding document are not logically dependent on the idea or existence of a deity. The authority of law does not rest on revealed truth or even the idea of a Supreme Being. Moreover, the Constitution specifically bars any religious test for federal office, so government service may not be conditioned on belief in a deity. Although many see a Supreme Being actively at work in the nation, the government may not make that claim. We are a religious people, but we have a secular government.
This book explores the idea of secular government for a religious people. The idea rests on a foundational claim that is often overlooked or rejected — the distinction between the government and the people. The government, in Abraham Lincoln's words, is "of the people, by the people, and for the people," but the two are distinct. The people have diverse and robust views about religion, and display an impressive range of religious beliefs and practices. The government respects and recognizes those commitments by acknowledging that they exist, by accommodating many of the religious needs of communities and individuals, by providing various forms of assistance to religious entities, and by guaranteeing rights related to religious exercise. But the government does not have a religious identity of its own. Whatever the current religious demography of America, we do not have a Christian state — or a Jewish, Islamic, theist, or atheist state, for that matter.
Some people argue, however, that the idea of secular government is hostile to religion, and effectively establishes an official "religion" of secularism. Those concerns are misplaced. Properly understood, the idea of secular government is not hostile or even indifferent to religion. Instead, it simply reflects the limited authority of civil government. The genius of our political system is the distribution of power and responsibilities — some matters lie within the jurisdiction of federal authorities, others belong to the states, and still others belong only to the people. Within the federal government, the executive, legislative, and judicial branches occupy distinct spheres of competence. At their best, these structures and relationships reflect mutual respect among the various institutions, and an awareness that usurpation of another institution's authority undermines the welfare of the whole.
We believe that the relationship between civil government and religion is similar in important, though certainly not all, respects to the Constitution's allocation of powers among various political institutions. In the late eighteenth century, most European states — and several states of the United States — assigned the government responsibility to care for the religious welfare of the people. Through various kinds of religious establishments, governments declared and enforced orthodox beliefs, imposed taxes to support ministers and churches, and compelled attendance at worship. The nonestablishment principle withdraws that responsibility from civil government. Under the nonestablishment principle, the government does not promote religious worship, oversee religious indoctrination, or exercise religious authority. Instead, that responsibility belongs solely to the people and their voluntary religious communities.
It may seem unusual to think of nonestablishment in terms of the character and structure of civil government, because most Americans tend to view the relationship between government and religion through the language of rights. In conflicts over that relationship, some emphasize the right to be free from unwanted religious experience, while others assert the right to freely exercise their faith in all dimensions of life, including public institutions. Although their differences are sharp, these rival claims both focus on religious liberty — the right of individuals and communities in religious matters.
In this book, however, we ask how the interaction between religion and government shapes the character of civil authority. By examining the relationship in terms of the character of civil government, we reach a quite different understanding of the nonestablishment principle. As we explain, the nonestablishment principle defines a government that receives its authority from the people, not from revealed or transcendent sources, and that recognizes the limited scope of its authority over the people.
This chapter, which sketches the broad outlines of this approach, begins by looking at why current conflicts over the relationship between government and religion are typically expressed in the language of rights. Then it briefly discusses structural approaches in other legal contexts, most notably federalism and the separation of powers, but also in relations between government and nongovernmental entities such as families. The chapter then moves to the core of our approach, which turns on the idea that religion constitutes a jurisdictional limit on civil government. That limit, we argue, arises from the distinctive relationship between religion and the quality of government authority. Under the nonestablishment principle, the state may not invoke religion as a source of civil authority; must disclaim the comprehensive sweep of religion as a subject within the scope of civil authority; and may not invoke the concept of worship as the character of citizens' response to civil authority.
As we elaborate later in the book, our understanding of nonestablishment also has striking implications for the government's role in preserving the religious liberties of the people. Those liberties are protected by a variety of constitutional provisions, including the Free Exercise Clause, as well as through discretionary decisions by government to accommodate religious objections to general laws. Through these mechanisms, the government protects the right of individuals and religious communities to believe, gather for worship, express their faith both within and without their own religious communities, and pursue religiously motivated social practices. Facilitating this collection of rights to religious freedom, however, is not the primary objective of nonestablishment. Nor does the language of rights offer the proper vocabulary or conceptual apparatus within which to frame or analyze nonestablishment.
Indeed, as later chapters emphasize, the principle of nonestablishment carries two important limits on a robust approach to religious liberty. First, the principle limits the state's power to privilege religion over analogous nonreligious beliefs and practices. Second, the principle constrains government decisions to exempt religious adherents from general laws that burden their exercise of religion, where the exemptions require government officials to make substantive judgments about the religious meaning or importance of the burdened activity.
In the remainder of this introductory chapter we ask whether our approach is consistent with the history of the religion clauses, and whether it finds any support in recent doctrine. The chapter concludes with an overview of the rest of the book, where we explore the jurisdictional understanding of secular government by giving close attention to a number of the most challenging and complex interactions between government and religion.
Nonestablishment and Rights Talk
In this era of the "culture wars," each day seems to bring another conflict over religion's place in the political community. The news is thick with stories: about a fight over official prayer at a city council meeting, the expansion of a synagogue, the presence of an evangelical club in a public school's extracurricular program, and the public funding of an Islamic charter school, to name only a few. Although the settings of conflict vary, the basic arguments in the dispute remain essentially the same. One side asserts a right to be free of government-backed religion. This side argues that government endorsement or support of religion violates the rights of those who don't share the favored beliefs. The other side asserts a countervailing right to full involvement of religious individuals in public life, including the opportunity to express religious views in public spaces, equal access to public funding of religious education and causes, and an equal entitlement to government promotion of religious messages. The conflicts thus involve mutually incompatible claims of rights.
By asserting these rival and incompatible rights, each side ignores half of the Constitution's distinctive way of connecting secular government and religious people. One group exalts the secularity of the state but dismisses the religious character of the people, and the government's legitimate responsiveness to that character. The other group denies the distinction between the government and the people, and expects the government to mirror and celebrate the community's (usually the majority's) religious identity.
The rhetoric and results of Supreme Court decisions in Establishment Clause cases have tended to reinforce the two sides' understandings of the conflict. As a vivid and important example, the Supreme Court decided a pair of legal challenges to government-sponsored displays of the Ten Commandments. Plaintiffs in the two cases argued that the displays violated the Establishment Clause. Although the texts of the displays were nearly identical, the Court — by 5-4 votes — upheld one and invalidated the other. The difference between the outcomes is attributable solely to Justice Breyer, who alone was willing to uphold one display and strike down the other.
The other eight justices divided equally, and each side's reasoning illustrates the broader conflict of rights. The side that voted against the displays focused on the injury to observers. The government's support for religious views expressed in the displays caused those who did not share those views to experience a sense of alienation or exclusion. In this understanding, the Establishment Clause protects observers against government practices that endorse or promote religion, and official displays of the Ten Commandments do just that. In contrast, the justices who voted to uphold the displays argued that the Establishment Clause does not bar political majorities from using the government to express their shared religious beliefs.
The evolution of rights talk as a mode of Establishment Clause discourse can be traced to at least four causes. First, as a matter of both English and colonial history, establishments of religion frequently involved suppression of rights of religious liberty. Second, the structure of adjudication, especially in the federal courts, demands the presence of a plaintiff who can show that his or her own personal interests have been adversely affected. Third, Establishment Clause principles came of age in American constitutional law primarily during the rights revolution brought on by the work of the Warren and Burger Courts. Fourth, the current contours of Establishment Clause law have been strongly shaped by arguments that robust enforcement of nonestablishment principles violates the equality-based rights of religious individuals, messages, and institutions.
Disestablishment and Religious Liberty
Rights talk seems natural in this conversation because we tend to see nonestablishment as an aspect of religious liberty. Limits on the state's involvement with religion promote the freedom of individuals and communities to practice religion as they see fit. The link between religious liberty and nonestablishment has strong historical roots. Indeed, the characteristic marks of a state-established church — reflected in the mid-eighteenth-century Church of England — include a variety of forms of oppression.
• Compulsory attendance: under threat of criminal penalty, all people were required to attend worship. Stricter forms of establishment mandated worship only in the official church, while looser forms permitted people to choose from a list of acceptable places of worship.
• State-prescribed worship: public officials defined the content of orthodox beliefs and forms of worship. For example, the Church of England's 1662 Book of Common Prayer gained its authority in that church through a formal act of Parliament.
• State-controlled ministry: the government selected, paid the salaries of, and exercised control over religious leaders. In effect, ministers were themselves public officials, subject to removal when they failed to comply with government direction in matters of faith. So, for example, more than a thousand Anglican priests lost their positions ("livings") when they objected to official adoption of the 1662 Book of Common Prayer.
• Required support for the official faith: as a state institution, the official church received public support, often in the form of taxes imposed on the locality specifically for the purpose of funding the church.
• Suppression of other faiths: the government's promotion of an official church was often accompanied by prohibition or other legal restrictions on rival faiths. Laws prohibited publication of unapproved religious texts, public preaching by those who did not have an official license, and unauthorized assembly for worship.
Many of these features of religious establishment appeared in the English colonies during the seventeenth and eighteenth centuries. In mid-seventeenth-century Massachusetts, religious dissenters could face harsh punishments; for example, Quakers who returned to that colony after being exiled for unlawfully proclaiming their faith could be executed. A number of colonies routinely punished unlicensed itinerant preachers, especially those active during the religious ferment of the First Great Awakening. And, in the years before the Revolution, Baptists were prosecuted in Virginia for failure to attend state-approved worship.
A robust principle of nonestablishment directly addresses all those limits on religious liberty. If the government lacks jurisdiction over the religious welfare of its people, the state loses its power to define orthodox belief and worship, compel observance or financial support of religion, or control the personnel of a faith community. Nonestablishment thus protects voluntarism in religious matters — that is, the right of individuals and associations of individuals to choose their own faith commitments. In this historical light, nonestablishment seems to be focused on the protection of rights.
Standing to Sue — Injuries and Rights
The tendency to view nonestablishment principles through a prism of rights has been strenuously reinforced by the structure of adjudication in the federal courts, where most Establishment Clause cases are litigated. Article III of the Constitution extends the judicial power of the United States only to the decision of cases and controversies, a limitation requiring a party who invokes judicial power to have "standing" to sue. To demonstrate such standing, a plaintiff in the federal courts must show (among other things) that he or she has been personally "injured in fact"
