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  • Religion Interfacing with Law and Politics:Three Tired Ideas in the Jurisprudence of Religion
  • L. Scott Smith (bio)

Where Do We Begin?

The derivation of the word "religion" is unclear, but many scholars believe that its Latin root is religare, which means "to bind."1 Based upon this derivation religion may, in possibly its broadest sense, be understood to comprise those beliefs that bind together one's understanding of all reality. Religion, thus interpreted, is synonymous with the worldview within which one thinks, works, and relates to others.

A problem occurs when there are many diverse religions represented in a single geographical population. Worldviews collide, with conflicts, often deadly ones, resulting. Our founding fathers were cognizant not only of the significant link between religion and virtue, on which any republican government ultimately rests, but also of the dangers posed by warring religious factions. The Bill of Rights addressed the subject as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These guarantees comprise our first freedoms.

The principles by which the United States Supreme Court interprets our first freedoms are, simply put, its jurisprudence of religion. [End Page 14] Constitutional scholars have, in recent years, lamented the state of religion jurisprudence. One has called it a "muddle," while another has labeled it a "mess."2 I agree with their negative assessments, but I do so for reasons they probably would not accept.

The purpose of this article is to shine a light on three distinct ideas that lie at the heart of the Court's jurisprudence of religion. The ideas are tired but unfortunately remain pivotally significant. As long as the outcomes in religion cases are predicated upon them, confusion is bound to ensue. At the risk of being branded a constitutional heretic, maverick, or radical, I may as well show my hand all at once rather than piecemeal. The jurisprudential ideas that have occasioned enormous mischief and for which I have low regard are separationism, neutrality, and coercion.

Separationism: Where Is There, and How Can There Be, "a Wall"?

Thomas Jefferson, in his famous letter to the Danbury Baptist Association, spoke of "a wall of separation between church and state."3 This celebrated metaphor does not appear in the Constitution. The trope, in fact, was not constitutionalized in establishment jurisprudence until approximately a century and a half later, when Justice Hugo Black rediscovered it in the case of Everson v. Board of Education.4 He stated, "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"5

In evaluating Jefferson's phrase, the most immediate question that comes to mind is "How pervasive is the state?" The way in which one answers will determine the place left for the church and religion in public life. However one may decide to respond to the question, doing so involves him or her not primarily in law but in politics. Separationism, a doctrine that lies at the heart of church-state relations in this country, has no meaning independent of politics. A Lockean and a Marxist, for example, will not interpret the [End Page 15] separation of church and state in the same way, precisely because their respective views of the state drastically differ. For one, the state is generally limited and minimally intrusive, while for the other the state is involved in virtually every aspect of one's life. One's political vision, pure and simple, will determine the respective portions of the apple belonging to God and to Caesar. The meaning of Jefferson's metaphor, which has become synonymous with the Establishment Clause, radically varies depending upon the politics of the one interpreting it.

That the meaning of separationism is legally ambiguous was borne out by the outcome in Everson itself. The question in the Everson case was whether it is constitutionally permissible for tax revenues to defray the cost of transporting children to parochial schools, and the Court answered affirmatively. The Everson doctrine had no sooner been stated than it was used as a permit to tax citizens in order to provide free transportation to students...


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