Frank Bernheisel: The View From Here
Frank Bernheisel
Frank Bernheisel
Posted 7.31.22
Just Outside Washington




I have talked about religion in government before, and I may be repeating myself in this piece; but I think this is important. And it is growing more urgent.

The Declaration of Independence mentions God only once and does not mention religion at all. As we all know it opens: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them…" There have been many discussions about what the founders meant by "Nature's God". It did not say Christian God or Christ or Allah. My reading of the Founders is they were primarily deists, which is they believed in a power above humans but not with religious trappings.

The U.S. Constitution does not mention God at all. However, it does mention religion twice. In Article VI it says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Notice that the listed public servants, both Federal and State, "shall be bound by oath ... to support this Constitution". And no religious test shall be required, and it does not specify that any particular object or book be sworn upon.

The first amendment the Constitutions precludes Congress from passing laws to establish or, I would say, support religion. Also, it specifically precludes Congress from passing laws to prevent people from practicing their religion.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution says nothing about "religious freedom". It prohibits Congress from encouraging or promoting ("establishing") religion in any way. That's why we don't have an official religion of the United States. There is always the problem of exactly what the drafters of the Constitution really meant with their words, so let's look at "establish" in the Oxford Dictionary.

es·tab·lish [əˈstabliSH] VERB, establishing (present participle) 1. set up (an organization, system, or set of rules) on a firm or permanent basis:

"The British established a rich trade with Portugal" 2. achieve permanent acceptance or recognition for:

"The principle of the supremacy of national parliaments needs to be firmly established" 3. show (something) to be true or certain by determining the facts:

"The police established that the two passports were forgeries"

After the Constitution was adopted, Thomas Jefferson in order to clarify these documents used the phrase "separation of church and state", which he spelled out in his 1802 letter to the Danbury Baptists:

"Believing with you that religion is a matter which lies solely between Man &: his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."**

While the First Amendment says that Congress shall make no law to establish religion, and Jefferson's interpretation says there is a wall separating church and state, this does not exempt religious people and religious organizations from obeying the laws of the land. In the past several religions had and supported practices that are against the law in the U.S. Some examples include human sacrifice, female genital mutilation, polygamy, underage marriage (laws vary among states), and I am sure you can think of others.

So, how do we know when the Congress is "establishing religion"? The Supreme Court decided Lemon v. Kurtzman in 1971, which created three tests for determining whether a particular government act or policy unconstitutionally promotes religion. The Lemon test says that to be constitutional, a policy must:

Have a non-religious purpose; Not end up promoting or favoring any set of religious beliefs; and Not overly involve the government with religion. There is another issue not addressed in the Lemon decision: "What if my religious practice hurts others?"

So, who made up this "religious freedom" business in the first place?

The American Founders understood the importance of religion for human, social, and political flourishing. That's why they styled religious freedom -- that is, the freedom of all to exercise religion -- as the first freedom. They were convinced religious freedom was necessary for the well-being of citizens, for the common good, and for public virtue without which they believed the new Republic would fail. Their view might be accurately called free exercise equality.

Until a few years ago, the vast majority of Americans supported the Founders' understanding of religious liberty. Consider, for example, the Religious Freedom Restoration Act and International Religious Freedom Act. During the 1990s both passed with overwhelming, bipartisan support in Congress and were signed by President Clinton. Americans would sometimes disagree over how to apply religious freedom in particular cases, but they generally understood it to be our first freedom. With the Founders, they believed it to be a building block for all other fundamental freedoms, indispensable to the common good, and a source of protection for everyone.

Those days are gone.

Current Actions and Decisions

In 2016 Martin R. Castro, Chairman of the U.S. Commission on Civil Rights, created by Congress to protect the civil rights of all Americans, issued the following statement: "The phrases 'religious liberty' and 'religious freedom' will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance," in his closing remarks on the commission's report on "Peaceful Coexistence" between nondiscrimination principles and civil liberties.

Since then, the United States has gone far beyond that. We now have a Supreme Court, which has religious activists who seem to be applying the religious doctrine that "life" begins at conception. I see several problems with this. This is a court which likes to talk about language and precedent. So lets look at the Oxford Dictionary definition:

Life [līf]

NOUN the condition that distinguishes animals and plants from inorganic matter, including the capacity for growth, reproduction, functional activity, and continual change preceding death: "the origins of life" the existence of an individual human being or animal: "a disaster that claimed the lives of 266 Americans" the period between the birth and death of a living thing, especially a human being: "she has lived all her life in the country" For the Supreme Court, life appears to be the merging of an egg and sperm as it is for the Catholic Church, when the church says the embryo gets a soul. For me, it is the birth of a breathing human being. The recent Supreme Court decision, Dobbs..., turns the cell mating into a legal jurisdiction, its fate to be decided by judges, lawyers, and politicians. None of whom have the care of or burdens of the mother or the training and knowledge of her doctors."

There is more. The decision of the Supreme Court, Kennedy v. Bremerton School District, said coach Joe Kennedy's -- a local government employee working in a local government facility -- prayers amounted to private speech, protected by the First Amendment. Justice Sonia Sotomayor, writing for the three liberal dissenters, said the court "weakens" the Establishment Clause's "backstop" protecting religious freedom. "It elevates one individual's interest in personal religious exercise, in the exact time and place of that individual's choosing, over society's interest in protecting the separation between church and state, eroding the protections for religious liberty for all,"

In June, the Supreme Court, Carson v. Makin, ruled to endorse more public funding of religious entities as its conservative justices sided with two Christian families who challenged a Maine tuition assistance program that excluded private religious schools. Maine's program provides public funds for tuition at private high schools of a family's choice in sparsely populated areas of the northeastern state lacking public secondary schools. Maine required eligible schools to be "nonsectarian," excluding those promoting a particular religion and presenting material "through the lens of that faith." However, the schools, in this case, describe themselves as seeking to instill a "Biblical worldview" in students, and they refuse to hire gay teachers or admit gay and transgender students. Bangor Christian Schools (BCS) teach that a "husband is the leader of the household" and includes a class in which students learn to "refute the teachings of the Islamic religion with the truth of God's Word." Justice Steven Breyer wrote: "Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree," and added that believers in minority religions might see injustice in public funds going to adherents of more popular faiths. To me this case hardly meets the standard of making no law respecting an establishment of religion, as stated in the Constitution and explained by Thomas Jefferson.

I agree with Justice Sotomayor who admonished the path the Supreme Court has taken about the Religion Clauses: "This Court continues to dismantle the wall of separation between church and state that the Framers fought to build."

** Jefferson, Thomas. Jefferson's Letter to the Danbury Baptists: The Final Letter, as Sent. The Library of Congress Information Bulletin: June 1998. Lib. of Cong., June 1998. Web. Aug 7, 2010.