In June, the Constitution and civil religion hang in the balance

The Supreme Court will at long last reveal what specific religious rights the Constitution continues to protect during these contested and increasingly laical times.

By Hal Boyd May 31, 2020, 6:00am MDT

In the coming days, the Supreme Court will announce decisions from an unusually monumental docket of First Amendment cases.

Legal experts anticipate that the court’s forthcoming opinions will bring greater clarity to pressing religious freedom questions regarding the contours of permissible religious objections, the scope of protected faith-based hiring and firing, and the constitutionality of excluding religious schools or faith-based adoption agencies from certain forms of governmental support.

In essence, the court will at long last reveal what specific religious actions the Constitution protects during these contested and increasingly laical times.

Of course, for those watching the culture wars from the sidelines, these questions may seem pedestrian, if not altogether irrelevant to the pulse of secular life. But, this overlooks how religion’s health inevitably and unavoidably influences the nation’s overall moral constitution.

That’s why the outcomes of these cases matter for all citizens.

Indeed, the religious timber of the people can’t help but impact the life of the whole. As Franklin Roosevelt put it, “In teaching this democratic faith to American children, we need the sustaining, buttressing aid of those great ethical religious teachings which are the heritage of our modern civilization. For ‘not upon strength nor upon power, but upon the spirit of God’ shall our democracy be founded.”

When religion has both the space and support to flourish it helps sustain a unique form of what the late Harvard sociologist Robert N. Bellah christened America’s “civil religion” — a public, nonsectarian moral ordering that Americans still hold and reverence in common.

Think of our national days of prayer or our invocations of God in public oaths and on currency. Despite vast ideological differences, we share these uniting rites and symbols.

For those who seek to uphold the Constitution and sustain First Amendment freedoms, it’s worth appreciating that behind our founding documents — behind the canonical language and the sinewy, ink-stained parchments — we find the social scaffolding that frames how the nation is constituted; how it’s organized, ordered and oriented toward one another and the common good.

A written constitution acts as a guardrail of sorts, keeping the nation’s unwritten norms aligned toward proper ends. To paraphrase St. Paul, the law acts as a schoolmaster, teaching and guiding us. In a true democratic republic “we the people” still call the shots, but our Constitution has a way of returning the favor.

At its best, the law goads citizens along the extended moral arc toward personal rectitude. It shapes us into something better. Aristotle compared legislating to a kind of craft — a statecraft — in which politicians aim to tailor systems of law so they aid citizens in cultivating certain moral virtues. Of course, observing our political climate today, one can’t help but wonder what happens if the citizens simply disagree about what constitutes moral virtue.

The genius of the First Amendment’s establishment and free exercise clauses is how they actually work in tandem to foster an environment in which a variety of religious and moral orderings can thrive. Paradoxically, out of these many moral orderings a unified civil religion emerges.

To quote Bellah, “the separation of church and state has not denied the political realm a religious dimension.” He continues: “There are, at the same time, certain common elements of religious orientation that the great majority of Americans share. These have played a crucial role in the development of American institutions and still provide a religious dimension for the whole fabric of American life, including the political sphere.”

Though Bellah wrote in the mid-20th century, most Americans (nearly 9 out of 10) still say they believe in God. And even with recent declines in religious affiliation, a sizable plurality of the U.S. population identifies as very religious. This stands in contrast to other more secular western nations.

Sustaining America’s distinct religious identity, courts have often reaffirmed the Constitution’s broad protections for people of faith. But, some contemporary scholars and jurists have come to view these protections, along with other governmental support for religion, as a violation of the separationist intent of the First Amendment’s establishment clause, which Thomas Jefferson said aimed to erect a “wall between church and State.”

Other sophisticated thinkers, however, have responded that the establishment clause shouldn’t be read in isolation from the accompanying free exercise clause or the other interwoven First Amendment rights (freedom of speech, press, and assemblage).

Furthermore, as legal scholar Rodney Smith has pointed out, if the nation’s First Congress really intended to adopt a strict “wall of separation” through the establishment clause, they didn’t exactly act well the part. After all, the First Congress contemporaneously passed laws that intended to support nonsectarian religion, including by “appointing a chaplain, supporting sectarian education on Indian reservations, providing for religious objects on public property, and permitting public property to be used for religious purposes.”

More prevalent at the time, Smith seems to suggest, is the view of church and state articulated by Justice Joseph Story in the case Terrett v. Taylor. Issuing the opinion in 1815, Justice Story argued that while a state couldn’t force a religious tax on its people to support a single religious sect, the Constitution did not prohibit legislatures from enacting laws that might “enable all (religious) sects to accomplish the great objects of religion by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual concerns.”

As Story acknowledges, though, religious freedom does have boundaries. And, in Reynolds v. United States, the court famously refused to allow “professed doctrines of religious belief” to become “superior to the law of the land.” Additionally, in deciding the forthcoming cases dealing directly with conflicting rights, the courts should seek to balance competing freedoms while deferring to the legislature on policy considerations. With regard to nondiscrimination protections for LGBTQ individuals, for instance, Congress is likely best suited to convene the sort of conversations and mutually beneficial compromises necessary to protect both LGBTQ people and religious believers. Fairness for all would demand nothing less.

But, whether it’s allowing faith-based schools the space to determine their own employment standards, or permitting governments to work with religious social service providers, the courts can best serve the nation and the Constitution by enshrining once more the liberties long guaranteed by the nation’s Bill of Rights.

The country’s civil religion — supported by the Constitution’s First Amendment freedoms — remains the country’s best means for mending its fractures and reconstituting itself as one nation, under God.

Hal Boyd is an associate professor of family law and policy at Brigham Young University’s School of Family Life and a fellow of the Wheatley Institution. His views are his own.