"Religion" in US Law

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Robert Traer

In the United States international law concerning religion and belief has had almost no impact on the way that religious freedom is understood and affirmed. One of the reasons for this is the clear statement concerning religion in the first amendment of the constitution of the United States. The language of the first amendment has dominated the courts and the consciousness of citizens of the United States for two centuries and thus has had a major role in shaping the way they understand religion as well as belief and faith.

The first amendment of the constitution of the United States commands that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The fourteenth amendment to the constitution has been interpreted by the United States Supreme Court to apply the first amendment also to the states and not only to Congress. Very simply, the first and fourteenth amendments taken together mean that no laws can be passed within the United States "which aid one religion, aid all religions, or prefer one religion over another." (Everson v. Board of Education, 330 U.S. 1, 1947)

The Everson opinion written by Justice Hugo Black begins with a brief review of American history. "A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews . . .."

The language here is interesting. Justice Black uses the word "sect" to refer to different groups of Christians, including those established by law. He knows that it does not make sense to call these different religious groups, "religions." When he speaks of persons who suffered from persecution he shifts to the language of faith. "Catholics found themselves hounded and prescribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated."

A dissenting opinion written by Justice Wiley B. Rutledge and joined by Justices Felix Frankfurter, Robert H. Jackson, and Harold H. Burton quotes from "A Bill for Establishing Religious Freedom" (drafted by Thomas Jefferson for consideration by the state of Virginia) the assertion that there is to be a "wall of separation" between church and state. This image of separation has come to dominate discussion in the United States concerning the relationship of the government to "religious opinions or belief." This last phrase is used in the dissenting opinion but also appears in the statute being challenged by the case before the court. The dissenting opinion also employs phrases like "believers of all faiths" and "many of various faiths" as well as referring to those whose "religions differ" and who have their "own religion."

Clearly, it seemed to several of the Supreme Court Justices a half a century ago that the word "faiths" might be used as a synonym for "religions," even though "faith" is never used to replace the word "religion" in discussions of the first amendment. Moreover, faiths and religions were seen to concern religious opinions or beliefs. If different shades of belief had led to persecution in the past, all agreed that this should not be the case in the present. But in Everson four Justices dissented from the majority opinion that the use of tax revenue by the state of New Jersey to fund transportation of pupils to parochial as well as public schools was permissible under the first amendment.

In 1985 the Supreme Court decided in Wallace v. Jaffree 472 U.S. 38 that legislation requiring a moment of silence in school violated the first amendment. In the opinion and dissents of this case we find references to religion and also "religious belief" as well as assertions about government neutrality between religion and "irreligion." But the word "faith" appears only in a quote from a 1943 case. Similarly, in the 1992 case of Lee v. Weisman 112 Sup. Ct. 2649 the debate among the Justices is carried on in the language of religion and irreligion. In addition, the opinion of the court written by Justice Anthony M. Kennedy speaks of "civil religion" in order to reject the notion that the government may support a non-creedal religious ideology or practice.

There is a reference in the opinion of the Court to "religious faith" in a quote from an earlier case, and the opinion also speaks of the rights of "believers" and "the nonbeliever." In addition, the opinion of the Court makes two other interesting statements. First, it acknowledges "the profound belief of adherents to many faiths that there must be a place in the student’s life for precepts of a morality higher even than the law we today enforce." And second, it refers to "the good faith" of the school in scheduling prayers for ceremonies, despite the Court’s finding that such prayers in public schools are unconstitutional. The notion of "good faith" refers to the intentions of the school authorities.

Furthermore, in Lee a concurring opinion written by Justice David H. Souther and joined by Justice John Paul Stevens and Justice Sandra Day O’Connor notes that at the time of the drafting of the first amendment a debate over the scope of the clause raged between the House and Senate of the Congress, which was only settled by a joint conference committee. "What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of ‘a religion,’ ‘a national religion,’ ‘one religious sect,’ or specific ‘articles of faith.’ The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for ‘religion’ in general." For these three Justices the first amendment clearly prohibits government from supporting a plurality of religious views as well as any single religious profession of faith. Courts, they caution, "should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes."

It is intriguing to speculate what these Court opinions might have said if Congress had passed the original Senate version of the first amendment that affirms: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." This version of the first amendment would have written the word "faith" into the constitution of the United States. Cases concerning the establishment of religion would, therefore, have concerned "the establishment of faith." The concurring Justices in Lee assert that faith (or at least "articles of faith") would have been a more limiting concept than religion has been. This may be, however, because of the way the concept of religion has developed in the past two hundred years, perhaps due in part to the opinions of the Supreme Court.

It is clear from these opinions that faith and religion may be used in the law as synonyms and that the plural "faiths" may appear at times meaning "religions." Increasingly, however, the Supreme Court has refrained from referring to faith or faiths and has chosen to articulate the law in terms of religion and religions, even introducing variations on these words with no historical basis in law, such as irreligion and civil religion. Therefore, although different than international law, which does not proscribe the establishment of religion but only asserts the principle of discrimination in religion, both international law and the law of the United States support freedom of religion or belief (irreligion). 

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