The Constitution of Religious Freedom: God, Politics, and the First Amendment

Introduction

1 Despite, or perhaps even because of, the prohibition of an officially established church in the United States, religion has always been a factor in American politics. Political scientists, for example, for years have studied the correlation of party identification and voting behavior with religious affiliation.1 If we start with the premise that the Constitution establishes a particular kind of political order, however, we can distinguish between questions regarding the activities and agendas of religious groups in the American political order, and questions regarding the religious nature, if any, of the American political order. Questions of the former type take that political order for granted in order to explore certain political phenomena within it, whereas questions of the latter type take the overall character of that political order itself as their object of investigation. This book is not a work of political science concerned with questions of the political behavior of religious groups, but rather a work of political and constitutional theory, grounded in attention to religion-clause jurisprudence, concerned with questions regarding the nature of the political order established by the American Constitution. Specifically, it is an investigation of what the existence of the religion clauses of the Constitution, and Introduction 1 Two standard textbooks on the general topic of politics and religion, but including discussions of religion-clause jurisprudence, are Robert Booth Fowler, Allen D. Hertzke, Laura R. Olson, and Kevin R. den Dulk, Religion and Politics in America: Faith, Culture, and Strategic Choices, 4th ed. (Boulder, Colo.: Westview, 2010), and Kenneth D. Wald and Allison Calhoun-Brown, Religion and Politics in the United States, 6th ed. (Lanham, Md.: Rowman & Littlefield, 2010). The Religion and Politics organized section of the American Political Science Association (http://www.apsa -section-religion-and-politics.org/) publishes a journal, Politics and Religion, which focuses on “the impact of religion on political attitudes, decision-making, and public policy development” (http://www.apsa-section-religion-and-politics.org/journal .html). 2 The Constitution of Religious Freedom of the Establishment Clause in particular, signifies about the religious nature of the political order established by the American Constitution. Conflict over this theoretical and jurisprudential question has become, over the past half-century since Engel v. Vitale and Abington v. Schempp,2 a central issue itself in everyday, practical politics, both between the Democratic and Republican parties and within the Republican Party itself. Beyond specific issues in religion-clause case law, arguments about the religious character of the American political order stand behind the more explicitly political conflicts over what we can call a de facto religious test for office and the Christian-nation debate. The Constitution of the United States prohibits any official, de jure religious test for public office. The last paragraph of Article VI requires all government officials, both federal and state, to support the Constitution, but adds the stipulation for federal office that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” As for state office, the Supreme Court held in Torcaso v. Watkins (1961) 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.3 Nevertheless, it is not unusual to encounter in American electoral politics an unofficial, de facto religious test for public office. According to an August 2010 poll sponsored by the Pew Forum on Religion & Public Life, 67 percent of Americans say that religion is losing its influence on public life, and 53 percent say that this is a bad thing. Additionally, “Fully 61% say it is important that members of Congress have strong religious beliefs; just 34% disagree.”4 During the 2008 presidential-election cycle, former Massachusetts governor Mitt Romney found it necessary during his run for the Republican presidential nomination to give a speech titled “Faith in America” in late 2007 in order to deal with concern in some 2 Engel v. Vitale, 370 U.S. 421 (1962), and Abington School District v. Schempp, 374 U.S. 203 (1963). 3 Torcaso v. Watkins, 367 U.S. 488 (1961), at 495 (footnotes omitted). The Court overturned that part of Article 37 of the Declaration of Rights of the Maryland Constitution stating that “no religious test...