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Audi Robert, 1993, “The Place of Religious Argument in a Free and Democratic Society”, 30, San Diego Law Review, 677, 701.
–, 2000, Religious Commitment and Secular Reason, Cambridge, Cambridge University Press.
–, 2001, “Religiously Based Morality: Its Proper Place in American Law and Public Policy?”, Wake Forest Law Review, 36, pp.217-570.
Audi Robert, Wolsterstorff Nicholas, 1997, Religion in the Public Square: The Place of Religious Convictions in Political Debate, New York, Rowmans & Littlefield Publishers.
Baer John W., 1992, The Pledge of Allegiance: A Centennial History, 1892-1992, Annapolis, Free State Press.
Carter Stephen L., 1993, The Culture of Disbelief, New York, BasicBooks.
Choper Jesse H., 1995, Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses, Chicago, University of Chicago Press.
Cuneo Terence, (ed.), 2005, Religion in the Liberal Polity, Notre-Dame, University of Notre- Dame Press.
Davis Derek H., 2005, “Is Atheism a Religion? Recent Judicial Perspectives on the Constitutional Meaning of ‘Religion”, Journal of Church & State, 47-4, pp.707-723.
Eberle Christopher J., 2002, Religious Convictions in Liberal Politics, Cambridge, Cambridge University Press.
Gey Steven G., 2003, “‘Under God’, the Pledge of Allegiance, and Other Constitutional Trivia”, North Carolina Law Review, 81, pp.1865, 1866-69.
Greenawalt Kent, 1988, Religious Convictions and Political Choice, New York - Oxford, Oxford University Press.
–, 1995, Private Consciences and Public Reasons, New York - Oxford, Oxford University Press.
–, 2005, “Common Sense about Original and Subsequent Understandings of the Religion Clauses”, Journal of Constitutional Law, 8, pp.479-511.
–, 2005, “History as Ideology: Philip Hamburger's Separation of Church and State”, California Law Review, 93, 367, pp.386-401.
–, 2007, “Religiously based Judgments and Discourse in Political Life”, St. John's Journal of Legal Commentary, 22, pp.445-491.
Habermas Jürgen, 2006, “Religion in the Public Sphere”, European Journal of Philosophy, 14-1, pp.1-25.
Laycock Douglas, 1996, “Freedom of speech that is both religious and political”, University of California, Davis Law Review, 29, pp.793-813.
Leech Kenneth, (ed.), 2001, Setting the Church of England Free: The Case for Disestablishment, Croydon, Jubilee Group.
Macedo Stephen, 1998, “Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism”, Political Theory, 26, pp.56-80.
McConnell Michael W., 1992, “Accommodation of religion: An update and response to the critics”, George Washington Law Review, 60, pp.685-742.
–, 2003, “Establishment and disestablishment at the founding, Part I: The establishment of religion”, William & Mary Law Review, 44, pp.2105-2149.
Nemoianu Virgil, 2006, “The Church and the Secular Establishment: A Philosophical Dialog between Joseph Ratzinger and Jürgen Habermas”, Logos, 9-17, pp.16-42.
Neuhaus Richard J., 1986, The Naked Public Square: Religion and Politics in America, Grand Rapids, Eerdmans.
Perry Michael J., 1991, Love and Power: The Role of Religion and Morality in American Politics, New York, Oxford University Press.
–, 1999a, Religion in Politics: Constitutional and Moral Perspectives, New-York, Oxford University Press.
–, 1999b, We the People: The Fourteenth Amendment and the Supreme Court, Oxford, Oxford University Press.
–, 2003, Under God? Religious Faith and Liberal Democracy, Cambridge, Cambridge University Press.
Sekulow Jay Alan, 2006, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions, Lanham, Rowman and Littlefield Publishers.
Shiffrin Steven, 1999, “Religion and Democracy”, Notre Dame Law Review, 74, pp.1652-1656.
Smith Steven D., 1999, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, New York - Oxford, Oxford University Press.
Weithman Paul J., 2002, Religion and the Obligations of Citizenship, New York, Cambridge University Press.
–, (ed), 1997, Religion and Contemporary Liberalism, Notre-Dame, University of Notre-Dame Press.
Weller Paul, 2005, Time for a Change: Reconfiguring Religion, State and Society, London, T & T Clark.
I have changed my mind over the years. See Perry M.J., 1991, 1999a, 2003.
See also Eberle Christopher J, Religious Reasons in Public: Let a Thousand Flowers Bloom, But Be Prepared to Prune (unpublished ms. 2007). Indeed, given a recent paper by Gerald Gaus, in which he agrees with Eberle that citizens and their elected representatives may rely solely on religious reasons in making political choices, I am inclined to think that the debate is largely over. See Gaus Gerald F, The Place of Religious Belief in Public Reason Liberalism (unpublished ms. 2007). (The two papers just cited, by Eberle and Gaus, were presented at the annual meeting of the American Philosophical Association, Eastern Division, December 2006, Washington) See also Habermas (2006); Nemoianu (2006): In a clear and unmistakable manner Habermas condemns all those who keep trying to sentence the religious discourse in the public square to silence, to eliminate and liquidate it all together. “It is in the best interest of the constitutional state to act considerately (schonend) toward all those cultural sources out of which civil solidarity and norm consciousness are nourished”. Communicativeness implies necessarily and by its very definition the effort of mutual understanding.
The First Amendment to the United States Constitution states, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” I concur in Kent Greenawalt's judgment that “[b]y far the most plausible reading of the original religion clauses–based on their text, the history leading up to their enactment, and legislation enacted by Congress is that Congress could protect but not impair free exercise in carrying out its delegated powers for the entire country and within exclusively federal domains, that Congress could neither establish a religion within the states nor interfere with state establishments [of religion], and that Congress could not establish religion within exclusively federal domains” (Greenawalt, 2005: 479). The religion clauses have long been held to apply–it is constitutional bedrock that they apply–not just to Congress but to the entire national government, and not just to the national government but to state government as well. In effect, then, the clauses provide that government may neither establish religion nor prohibit the free exercise thereof. The religion clauses have long been held to apply–it is constitutional bedrock that they apply–not just to Congress but to the entire national government, and not just to the national government but to state government as well. In effect, then, the clauses provide that government may neither establish religion nor prohibit the free exercise thereof. For Michael W.McConnell (1992: 685), “The government may not ‘establish’ religion and it may not ‘prohibit’ religion”. McConnell explains, in a footnote attached to the word “establish”, that “[t]he text [of the First Amendment] states the ‘Congress’ may make no law ‘respecting an establishment’ of religion, which meant that Congress could neither establish a national church nor interfere with the establishment of state churches as they then existed in the various states. After the last disestablishment in 1833 and the incorporation of the First Amendment against the states through the Fourteenth Amendment, this ‘federalism’ aspect of the Amendment has lost its significance, and the Clause can be read as forbidding the government to establish religion”. Id. at 690 n. 19. As I have explained elsewhere, a constitutional doctrine is constitutional bedrock if the doctrine is well-settled and there is no significant support–in particular, among the political elites–for abandoning the doctrine (Perry, 1999b).
If the idea is insufficiently familiar (McConnell, 2003: 2105). For a sketch of different kinds of religious establishment, from strong to weak, see Durham Jr., W. Cole, 1996, “Perspectives on Religious Liberty: A Comparative Framework”, in Van der Vyver J.D., Witte Jr. J., (eds.), Religious Human Rights in Global Perspective: Legal Perspectives, The Hague-Boston-London, Martinus Nijhoff Publishers, pp.1-19.
Cf. Akhil Reed Amar, 2000, “Foreword: The Document and the Doctrine”, Harvard Law Review, 114, pp.26, 119: “Let us recall the world the Founders aimed to repudiate, a world where a powerful church hierarchy was anointed as the official government religion, where clerics ex officio held offices in the government, and where members of other religions were often barred from holding government posts”.
See Saunders Cheryl (2000), “Comment: Religion and the State”, Cardozo Law Review, 21, pp.1295, 1295-1296: Nonetheless, that England still has an established church remains controversial. See, Leech (2001); Longley Clifford, “Establishment–It's Got to Go”, The Tablet [London], May 11, 2002, at 2; Weller (2005). Cf. “The Act of Settlement Debate”, The Tablet, Aug. 11, 2007, at 4; Hames Tim, “It would have been more honest to have called it the Dangerous Catholics Act”, The Tablet, Aug. 11, 2007, at 5 (the “it” in the title is the 1701 Act of Settlement).
More efficacious politically? Imagine: A machiavelian advisor counsels the powers- thatbe–who, let us assume, are atheists–that it would be better for social harmony if there were an established church, and that because the vast majority of the citizens are members of Church A, it makes more sense to establish Church A than Church B or Church C (etc.).
As Justice William Brennan once put it: “It may be true that individuals cannot be ‘neutral’ on the question of religion. But the judgment of the Establishment Clause is that neutrality by the organs of government on questions of religion is both possible and imperative”. Marsh v. Chambers, 463 U.S. 783, 821 (1983) (Brennan, J., joined by Marshall, J., dissenting).
For an example of a position that privileges the Christian church generally, see “Other Faiths Are Deficient, Pope Says”, The Tablet [London], Feb. 5, 2000, at 157: “The revelation of Christ is ‘definitive and complete’, Pope John Paul affirmed to the Congregation for the Doctrine of the Faith, on 28 January. He repeated the phrase twice in an address which went on to say that non-Christians live in ‘a deficient situation, compared to those who have the fullness of salvific means in the Church.” Nonetheless, “[Pope John Paul II] recognised, following the Second Vatican Council, that non-Christians can reach eternal life if they seek God with a sincere heart. But in that ‘sincere search’ they are in fact ‘ordered’ towards Christ and his Church”. Id.
Cf. Douglas Laycock (1996: 812-813), arguing that “[a]t the core of the Establishment Clause should be the principle that government cannot engage in a religious observance or compel or persuade citizens to do so”.
I don't discuss here the non-establishment caselaw fashioned by the justices of the Supreme Court of the United States. It bears mention, however, that if Justice Clarence Thomas is right, that caselaw “is in hopeless disarray...”. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 861 (1995) (Thomas, J., concurring). Many constitutional scholars have said much the same thing. See, e.g., Choper (1995); Van Alstyne William, 2005, “Ten Commandments, Nine Justices, and Five Versions of One Amendment–The First”, Now What? William & Mary Bill of Rights Journal, 14, p.17. Akhil Amar has referred to “the many outlandish (and contradictory) things that have been said about [the non-establishment norm] in the United States Reports” (Amar, n. 8, 119).
For a history of the Pledge of Allegiance, which makes its first appearance in 1892, see Baer (1992). The story of adding “under God” to the Pledge involves both the Knights of Columbus (a Roman Catholic organization) and post-World War II anti-communism. See id. pp.62-63.
Id. at 63.
See Marsh v. Chambers, 463 U.S. 783, 786 (1983): “In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, ‘God save the United States and this Honorable Court’. The same invocation occurs at all sessions of this Court”.
See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township v. Schempp and Murray v. Curlett, 374 U.S. 203 (1963).
See, e.g., Stone v. Graham, 449 U.S. 39 (1980); McCreary County v. American Civil Liberties Union of Kentucky, 125 S.Ct. 2722 (2005); Van Orden v. Perry, 125 S.Ct. 2854 (2004).
Sharp disagreement about whether government is in fact coercing anyone–or, more generally, about what, at the margin, “coerce” should be understood to mean–is not uncommon. See, e.g., Lee v. Weisman, 505 U.S. 577 (1992).
The Declaration of Independence, which marks the first formative moment in the emergence of the United States of America, famously relies–explicitly so–on belief in God: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights...” (Emphasis added). If the Declaration marks a formative moment in the birth of the United States, two texts of Abraham Lincoln mark formative moments in the nation's rebirth: the Gettysburg Address and the Second Inaugural Address, which is surely one of the most theologically intense political speeches in American history. “The Almighty”, said Lincoln in his Second Inaugural, “has his own purposes. Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!” Although we citizens of the United States of America don't recite the Declaration, the Gettysburg Address, or Lincoln's Second Inaugural, we do recite, frequently, the Pledge of Allegiance. According to the Pledge, the United States of America is a nation “under God”: a nation that, as Lincoln insisted in his Second Inaugural, stands under the judgment of a righteous God. Politicians and others are fond of asking God to “bless” America. Lincoln understood that the God who can, in judgment, bless America can also, in judgment, damn her: “He gives to both North and South, this terrible war, as the woe due to those by whom the offence came... [A]s was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.”
Cf. ACLU of Ohio v. Capitol Square Review & Advisory Board, 243 F.3d 289, 293 (6th Cir. 2001): “For most of our history as an independent nation, the words of the constitutional prohibition against enactment of an law ‘respecting an establishment of religion’ were commonly assumed to mean what they literally said. The provision was not understood as prohibiting the state from merely giving voice, in general terms, to religious sentiments widely shared by those of its citizens who profess a belief in God... [T]he principal thrust of the prohibition was to prevent any establishment by the national government of an official religion, including an established church such as that which existed in England at the time the American colonies won their independence from the Crown”.
According to the less restrictive understanding of what the non-establishment norm forbids, affirming one or another version of the Decalogue also violates the norm. See Finkelman Paul, 2005, “The Ten Commandments on the Courthouse Lawn and Elsewhere”, Fordham Law Review, 73, pp.1477, 1480-1498.
Justice Scalia has opined that “our constitutional tradition... ruled out of order government-sponsored endorsement of religion... where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ)”. Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting).
ACLU of Ohio v. Capitol Square Review & Advisory Board, 243 F.3d 289, 297 (6th Cir. 2001).
Steven G.Calabresi & Sarah E.Agudo, “Individual rights under State Constitutions when the Fourteenth Amendment was ratified in 1868: What rights are deeply rooted in American history and tradition?” Northwestern Public Law Research Paper No. 08-06 Texas Law Review, Forthcoming http://papers.ssrn.com.abstract=1114940 (2008), at 28-29.
I began the paragraph accompanying this note by asking why shouldn't we go further and embrace an understanding of the non-establishment norm according to which government may not affirm any religious premise whatsoever. However, someone may want to ask a question that pushes in the opposite direction: Why shouldn't we embrace an understanding according to which government may affirm a specifically Christian premise if the premise is nonsectarian as among Christians? The simplest answer: It is constitutional bedrock that government may not affirm such a premise.
A bit of American history is interesting here. The National Association to Secure the Religious Amendment to the Constitution was formed in 1864 “to propose the following change to the preamble to the Constitution (in brackets): We, the People of the United States, [recognizing the being and attributes of Almighty God, the Divine Authority of the Holy Scriptures, the Law of God as the paramount rule, and Jesus, the Messiah, the Savior and Lord of all,] in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America” (Sekulow, 2006: 125). The Christian Amendment, as it was called, “was considered twice by Congress: once in 1874 and again in 1894. The House Judiciary Committee rejected the amendment on both occasions” (ibid.: 126). Other interesting bits of American history are recounted in this op-ed by Jon Meacham, the editor of Newsweek: “A Nation of Christians Is Not a Christian Nation”, New York Times, Oct. 7, 2007.
As even those who reject the less restrictive understanding of the non-establishment norm will likely agree, the Supreme Court will not, in any remotely foreseeable future, rule that having “under God” in the Pledge (or “In God We Trust” as the national motto, or the like) is unconstitutional. If the Supreme Court, in a science-fiction scenario, were to so rule, the citizenry of the United States would rush to amend the Constitution to overrule the Court. Cf. Gey (2003) reporting on the virtually unanimous negative response to the federal court's (subsequently amended) decision in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002); Nieves Evelyn, “Judges Ban Pledge of Allegiance from Schools, Citing ‘Under God’, New York Times, June 27; Fineman Howard, 2002, “One Nation, Under ... Who?”, Newsweek, July 8, p.20. Religious liberty scholar Steven Shiffrin has argued that the United States has evolved from a country that is historically Christian into a country that is “officially monotheistic”, See Shiffrin Steven H., 2003, “Liberalism and the Establishment Clause”, Chicago-Kent Law Review, 78, pp.717, 727.
“[T]he very concept of ‘alienation’, or symbolic exclusion, is difficult to grasp. How, if at all, does ‘alienation’ differ from ‘anger’, ‘annoyance’, ‘frustration’, or ‘disappointment’ that every person who finds himself in a political minority is likely to feel? ‘Alienation’ might refer to nothing more than an awareness by an individual that she belongs to a religious minority, accompanied by a realization that at least on some issues she is unlikely to be able to prevail in the political process... That awareness may be discomforting. But is it the sort of phenomenon for which constitutional law can provide an efficacious remedy? Constitutional doctrine that stifles the message will not likely alter the reality–or a minority's awareness of that reality” (Smith, 1999: 164-165).
Marsh v. Chambers, 463 U.S. 783, 818 (1983) (dissenting).
Elk Grove Unified School District v. Newdow, 542 U.S. 1, 31 (2004) (concurring in judgment).
See Neuhaus Richard John, 2004, “Nasty and Nice in Politics and Religion in the Public Square: A Survey of Religion and Public Life”, First Things, March, pp.69-70.
No one with any doubt on this score should fail to read Steven Gey's article (2003: 1873-1880) under note 26.
See under note 19. See Laycock Douglas, 2004, “Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes, Missing the Liberty”, Harvard Law Review, 118, p.155.
Steve Shiffrin (1999) has addressed much the same question and, unless I misunderstand him, has given much the same answer I give here. See
Cf. Audi & Wolterstorff (1997: 32): “[N]on-religious people often tend to be highly and stubbornly passionate about not being coerced to [act in accordance with religious reasons]... [M]any who are not religious are incensed at the thought of manipulation in the name of someone else's non-existent deity”.
See also Greenawalt (2007): “[R]equiring people to comply with the moral code of a religion, absent any belief about ordinary harm to entities deserving protection, is a kind of imposition of that religious view on others”; Macedo (1998: “The liberal claim is that it is wrong to seek to coerce people on grounds that they cannot share without converting to one's faith”; Audi (1993): “If you are fully rational and I cannot convince you of my view by arguments framed in the concepts we share as rational beings, then even if mine is the majority view I should not coerce you”.
Or non-existence. Atheism is a religious position–a position on a religious question– for purposes of the non-establishment norm. Cf. Davis (2005).
Although under the non-establishment norm there are some religious premises government may not affirm–for example, the premise that God created the universe not 6,000 years ago, as some “young-earth creationists” claim, but billions of years ago–government may nonetheless affirm a premise that is consistent with a religious premise it may not affirm, so long as government's rationale for affirming the nonreligious premise does not rely on a religious premise government may not affirm. So government may affirm the premise that the universe is billions of years old.
Cf. Edwards v. Aguillard, 482 U.S. 578, 615 (1987) (Scalia, J., dissenting): “Our cases in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions. We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved... [P]olitical activism by the religiously motivated is part of our heritage”.
See footnotes 4 &5 and accompanying text.
Douthat Ross, 2006, “Theocracy, Theocracy, Theocracy”, First Things, August/ September 2006, pp.23 & 28. (emphasis added).
Kent Greenawalt has articulated a position close to the one I defend here. See (Greenawalt, 2007: 476-491) under note 35. In Greenawalt K., Religion and Constitution: vol.2: Nonestablishment and Fairness, Princeton University Press (to be published): “[A]s a matter of theoretical principle, I think enactment of a religious morality could violate the Establishment Clause, even if the religion, as a set of beliefs and religious practices, is not promoted or endorsed in the more straightforward sense... A law violates the Establishment Clause if the dominant ascertainable reason for its passage was a view that acts are immoral, based on a religious point of view and detached from any perspective about harm in this life that would be sufficient to justify a prohibition or regulation”. Id. at 487 & 489. Moreover, Greenawalt (op.cit.) says about his position what I have said in this paper about mine: that his position “will rarely, if ever, lead a court to invalidate a law... [T]he limits on appropriate grounds for laws [entailed by Greenawalt's position] are too narrow to have much practical significance”. Id. at 489 & 491.
See n. 37 and accompanying text.Haut de page