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Faith of Our Fathers

A tool for enlightened debate on the Establishment Clause and other church-state issues that continue to confront our nation.

By From the December 2008 - January 2009 issue

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Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America
By Steven Waldman
(Random House, 205 pages, $26)

THE PLACE OF RELIGION IN AMERICA is a problem as old as our republic. It has been a flash point of debate between liberals and conservatives on a wide range of issues--such as aid to parochial schools, prayer at civic gatherings, nativity scenes on public property, government assistance to faith-based organizations, and many other concerns. The locus of the problem is interpreting the Establishment Clause of the U.S. Constitution’s First Amendment (1791), which reads, “Congress shall make no law respecting the establishment of religion.”

Constitutional originalists hold to a strict interpretation of this text. They contend that when the First Amendment was ratified it simply prohibited the federal government from declaring itself in support of a national religion or acting in favor of a particular faith. On the other hand, proponents of a dynamic Constitution contend that what the phrase really means is that a strict separation must be maintained between the state and all religion in any form.

In Founding Faith, Steven Waldman, editor in chief of the popular online religion journal Beliefnet.com, investigates the genesis of the Establishment Clause. He presents the religious, philosophical, and political beliefs held by the authors and promoters of the Bill of Rights when the First Amendment was drafted. And while this highly readable trip back to the clause’s roots doesn't necessarily resolve the conundrum that religion presents in our civic life, it can help us to discern and more fully grasp the arguments made by both sides in the ongoing church-state debate.

Like most writers who delve into the First Amendment, Waldman explores the thinking of the great figures behind the Constitution, in particular the “Big Five”--Adams, Franklin, Jefferson, Madison and Washington--that small circle generally thought of as the key Founding Fathers. He notes a bottom-line fact: the “Big Five” were decidedly pro-religion, and not at all the vague, quasi-secular, hands-off-God deists they are often represented as being. Adams, Franklin, Jefferson, Madison and Washington all agreed on the importance of religion to a healthy democracy.

All to some degree believed that God intervened in the lives of men, and had chosen America for special blessing (the idea often referred to as American exceptionalism). That included Jefferson, whom Waldman presents as the least conventional of the five in his religious sensibilities. The Founders’ real concern was determining how religion could flourish best in America. Madison, whom Waldman paints as the most traditionally pious of the group, was the prime agent behind the First Amendment. He held a strong desire for a strict separation between church and state, because he believed that government presented the greatest potential obstacle to its flourishing. His view reflected his disgust with the European model of national churches, the history of which ultimately proved damaging to religion and an impediment to the freedom of conscience that was sacred to all the Founders.

BUT WALDMAN MAKES THE IMPORTANT POINT that constitutional study has tended to focus too narrowly on the thinking of the “Big Five.” As much as Adams, Franklin, Jefferson, Madison and Washington believed in God and His providential care (both for human beings and for our country) and agreed on the importance of religion in buttressing public morality, Waldman insists that their personal opinions are not the only standard by which the words of the Establishment Clause are to be understood. Indeed, to grasp fully the clause and its implications for religious freedom, it is essential to explore the views of a much wider group, including the members of the committee that drafted the Bill of Rights, as well as the congressional ratifiers.

The input and votes of all these men were vital in bringing the document to its final form and passage. And as Waldman wisely emphasizes, they all had their personal preferences regarding church-state relations, and moreover, represented states with widely divergent approaches to the concept of religious establishment. Some states, like Virginia, had prohibited funding of the Anglican Church as early as 1776, while Massachusetts continued to support the Congregationalist Church until 1833. That the First Amendment emerged from the framing process as it did reflects the fact that the Founders were, first and foremost, politicians willing and able to compromise in order to accomplish what was doable under the circumstances.

Waldman explores the ways in which the culture and denominational composition of each state, as well as the politicians’ personal beliefs, influenced how the Establishment Clause was understood. Pressure from Jefferson and Madison certainly provided encouragement to Virginia’s disestablishment law, while the views of Massachusetts’s John Adams and Fisher Ames, who considered government support for religion essential, had its effect in their state. Participation by men of such conflicting outlooks in the constitutional process argues forcefully that a narrow reading of the agreed-upon amendment is the only fair assessment that can be made. In other words, the First Amendment was intended only to prohibit a federally sponsored religion. Individual states could make their own laws.

But if that minimalist perspective reflects how the Constitution’s authors understood the First Amendment, passage of the 14th Amendment in 1868 opened the door to much broader interpretation. This post-Civil War amendment sought to guarantee due process of law in order to secure the rights of former slaves. It effectively accomplished “incorporation” of the Bill of Rights (the first 10 amendments to the Constitution) into the constitutions of all the states, subjecting state governments to the same restriction under which the federal government had to operate. State-established churches were now unconstitutional, and subsequent legal history has seen a seemingly endless series of church-state disputes.

An example is the 1971 Pennsylvania case Lemon v. Kurtzman, in which the Supreme Court found that state aid to parochial schools (most of which were Catholic) for teacher salaries, textbooks, and educational materials in non-religious subjects was unconstitutional. That decision introduced what has been called the “three-pronged test” by which state involvement in religion-related activities may be deemed permissible: (1) it must have a secular purpose; (2) the primary effect must neither advance nor inhibit religion; and (3) it must not result in government entanglement with religion.

Many conservative jurists believe Lemon went beyond the original intent of the First Amendment (and even superseded the 14th), but the justices left application of their decision to lower courts, which has resulted in a farrago of interpretation and enforcement in the various circuit courts. Interestingly, in another case, Zelman v. Simmons-Harris, the Supreme Court upheld a Cleveland program that gave low income, inner-city parents vouchers they could use to send their children to non-public schools, including religious schools. Such contradictions underscore why it matters who sits on the Court.

HOW FAR THIS HISTORY of First Amendment reinterpretation has brought us is evident in the recent passage by the Michigan state House of a bill requiring Catholic hospital staffers to inform rape victims about emergency contraceptives and to make those items available. Such a demand clearly contravenes Catholic moral teaching. But because Catholic hospitals are the recipients of public funds, channeled through various state and federal programs, they must abide by government conditions. Unless this legislation is reversed by the courts, all faith-based organizations receiving government monies run the very real and imminent risk that their mission and identity will be destroyed.

The Establishment Clause has served religion in America well--from the time of the Founders, right up to today. According to a 2008 survey conducted by the Pew Forum on Religion and Public Life, Americans are overwhelmingly religious. Some 78 percent identified themselves as Christians (with 4.7 percent belonging to religions other than Christianity), while 92 percent claimed to believe in some sort of universal spirit. Other studies, such as those done by sociologists Rodney Stark and Roger Finke (see The Churching of America, 1776-1992), demonstrate unequivocally the extent to which churches in America have proliferated. History also shows how the nation has profited from religion. Faith has always played a role in the public square, with generally positive effect. Many of America’s social justice concerns were motivated by religious sentiment, for example, the call for an end to slavery. And the leadership in the civil rights movement was provided by religious figures.

Waldman sees the ongoing tension regarding the reach of the First Amendment as a good thing. He believes in the reasonableness of the American people and in the courts’ ability to compromise when prudent and necessary. Waldman finds no indication of government hostility toward religion in America. If anything, he says, the opposite is true. This book is an invaluable historical resource, but more so, a tool for enlightened debate on church-state issues as they continue to confront our nation.

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About the Author

Rev. Michael P. Orsi is a chaplain and research fellow in law and religion at the Ave Maria School of Law in Naples, Florida.