Opening Thoughts

If I’m in the majority, I don’t get to tell you what to believe. That’s what the First Amendment’s Establishment Clause means. If I’m in the minority, you don’t get to tell me what to believe. That’s what the First Amendment’s Free Exercise Clause means. Aside from those two commands, the US Constitution also says that no religious test may be required for holding public office. And aside from those three things, the Constitution says precisely nothing about religion.

As hard as it is for American theocrats to believe, the United States, at least as a constitutional republic, has never been and still is not a “Christian nation.” In fact, the paucity of any reference to a Christian God in the Constitution was so pronounced that it was a subject of great curiosity among the masses. By some historical accounts, Alexander Hamilton was downright flippant when pressed on the godlessness of the Constitution; why, he was asked, had the framers not mentioned Jesus? His reply: “We forgot.”

But there was nothing flippant about the Treaty of Tripoli, ratified unanimously by the US Senate and signed by President John Adams, which said,

The Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of [Muslims]; and as the said States never entered into any war or act of hostility against any [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the [United States and Tripolitania in North Africa].

We turn now to the text of the Constitution and its meaning under Supreme Court precedents.

  1. Establishment

The Constitution says that the government is not allowed to establish religion. To analogize, suppose that you’re a parent instructing a babysitter as to how you’d like the babysitter to deal with your child. And suppose that you have discovered over the years that the child thrives when left to her own devices at bedtime. If you try to force her to bed at 8 pm, she fights and gets anxious and stays awake until midnight. But if you let her have milk and a cookie if she wants to and tell her to go to sleep whenever she wants, she’s in bed by 8:30 pm and sleeping like a bear in winter.

You might tell the babysitter, “I want you to keep my child safe and under control, but I don’t want you to establish a bedtime routine.” What you would mean by that, of course, is that the child should control her own bedtime routine. What if the babysitter then told the child, “You can go to bed whenever you want, but 8 pm is the magic hour; if you go to sleep at 8, a fairy will come and bless you while you sleep.” Or suppose the babysitter tells the child, “If you go to bed at 8, I’ll read you a story.” Or, “If you don’t go to bed at 8, you will hurt my feelings.” Or, “You can have a cookie before bedtime, but you may not eat it in bed.”

See the problems? What does it mean to establish a bedtime routine? Does the babysitter establish a routine (and thereby break the rule) by encouraging, enticing, or discouraging certain bedtime practices? Does the babysitter establish a routine merely by telling the child how she may go about her own routine? Or is the babysitter on firm ground as long as he or she doesn’t outright dictate the timing and precise practices to be associated with bedtime?

So what does it mean when the Constitution says that the government may not establish religion for or over the people? Does that mean the government may not encourage, entice, or discourage certain practices or beliefs? Does it mean the government must never involve itself with religious organizations at all? Or does it just mean that the government may not declare a national or state religion and force the people to submit to it?

Here are the basic rules the Supreme Court has come up with:

  • The government must not act with the purpose of causing people to become religious or non-religious. It also may not favor one religion over others. And it also may not do anything that has the primary effect of causing religious belief, non-religious belief, or the ascendance of one religion over others.
  • With regard to displays on government property, the government must not signal that it is endorsing religion, non-religion, or one religion over others.
  • With regard to prayers or other religious activities in public schools, the government must not coerce children into participating or make them feel like outsiders if they don’t.

Is it okay, constitutionally, for the government to provide science books or computers to schools, some of which happen to be religious (say, Catholic)? Yes. Is it okay to give parents school vouchers and let them make independent choices about where to send their kids to school? Yes. Is it okay to include a Nativity scene in a sprawling display on public property that is otherwise thoroughly commercialized and secular? Yes. Can public schools teach about Christianity and other religions as part of a class about history or world religions? Yes.

Is it okay for the government to give scholarships to students because they’re religious? No. Is it okay for a government to get so financially entangled with a religious organization that the government is practically running the organization? No. Is it okay to place a Christian symbol on public property in a way that is pronounced and preferential? No. Is it okay to teach creationism as science? No.

These examples illustrate the point:  it’s not that the government must avoid religion and religious institutions altogether; it’s that the government must not partner with religion or religious institutions.

How do these principles apply to Muslims and religious minorities?

As noted above, American theocrats are fond of saying that the US is a “Christian nation.” That isn’t true. Not only may the government not adopt Christianity (or the mangled version of Christianity that self-proclaimed Evangelicals seem to favor) as some kind of national or state religion; it also may not promote, endorse, or coerce people into believing in Christianity — or any other religion or non-religion.

Muslims and other religious minorities (including Atheists and agnostics, incidentally) have the right to participate in American society without being relegated to outsider status. Religious minorities should be especially vigilant in policing the public-school environment. School officials may not create or allow activities or behaviors that result in coercion or alienation.

2. Free Exercise

The government is not just prohibited from establishing religion; it’s also prohibited from interfering with or targeting religious beliefs or practices. But we have to be careful about this. If the government were not allowed to punish anyone for acting on their stated religious beliefs, then a lot of people would suddenly be finding religion: “Sorry, officer, I can’t commune with the Almighty unless I’m driving 90 miles per hour – now please be on your way.”

The Supreme Court has therefore ruled that a person may only assert a First-Amendment free exercise claim if he or she is basing the claim on sincerely held religious beliefs. Furthermore, free exercise claims won’t be entertained as to laws that are generally applicable and even handed. A law that applies the same way to everyone  – as, for example, a law that says you may not drive at a speed exceeding 70 miles per hour on an interstate highway – is immune from any free-exercise challenge. This makes some sense: A law that has no exceptions or chances for selective enforcement built into it is unlikely to be used to target people based on their religious beliefs.

But laws that are not generally applicable and even handed are a different story. Take, for example, a law that requires individualized hearings to decide whether a person may qualify for unemployment benefits after refusing to work on weekends on the basis of sincerely held religious beliefs. That kind of law, which does not simply apply exactly the same way to everyone, might result in abuse based on the religious beliefs of whoever is deciding whether to award benefits. Take, as another example, a citywide law that says that chickens may be slaughtered in the city, but not as part of any ritual. That is not a generally applicable law; there’s an exception to the prohibition built in for non-ritual chicken killing. This seems suspicious.

For laws like this – laws that are not generally applicable in an even-handed way – courts apply a very rigid kind of scrutiny. Such a law will only be upheld if it represents the best and least burdensome way to achieve some compelling (which is to say exceedingly important) purpose. This is a tough test.

In the chicken-killing case, for example, we might assume (for argument’s sake) that the government has a compelling interest in protecting chickens. But if that were really the government’s interest, this would be far from the best way to achieve the interest — the law will still result in many chicken deaths. If it wanted to save chickens, why would the government allow the killing of chickens for non-ritualistic purposes? If I’m a chicken, what do I care whether I’m being offed by KFC and recycled into a 10-piece bucket or slaughtered as part of a Santeria religious ritual? Either way, I’ve clucked my last cluck. And assuming that the government has some interest in preventing unsanitary chicken killing, it’s left to explain why it banned the killing of chickens as part of the Santeria ritual – which is precise and sanitary – while leaving filthy, inhumane chicken mills free to slaughter animals without regulation or inspection.

To review — even-handed and generally applicable laws are generally upheld, while laws that have built-in exceptions or mechanisms for individualized decision making, when they result in religious discrimination, are usually struck down.

How do these principles apply to Muslims and religious minorities?

Were the government to disfavor one religion – like Islam – by, say, requiring adherents to add themselves to some registry or banning their immigration to the US because of their religious beliefs, then litigation would be in order. It likely wouldn’t help Trump and his ilk were they to build some kind of hearings into such a law or provide exceptions for Muslims form certain countries – say European countries. The more the government adds individualized decision-making mechanisms or exceptions into a law, the more suspect the law becomes.

We will be on the lookout for such laws, because they must be subjected to the most rigid scrutiny. The government will always use the excuse that its purpose is to save lives and the republic itself – and those are indeed compelling ends. But the means must be the best available, meaning that if a judge can fathom even one better way to save lives and the republic, the law is invalid. This will leave an incompetent incoming administration grasping for explanations as to how its ill-conceived and malicious laws and policies might possibly constitute narrowly and carefully drawn means to achieving compelling, exceedingly persuasive purposes.

We must be ready for this fight.


Some pointers:

  • Keep records of governmental attempts to promote Christianity or other religions and make religious minorities feel like outcasts.
  • Photograph and document displays on public property that seem to indicate that the government has taken sides with regard to religion.
  • Insist that public schools not create an atmosphere where sectarian prayers, displays, or curricular choices make minority students feel coerced or ostracized.
  • Question any law or policy that treats Muslims or other religious minorities differently, either by exempting other religions or by permitting individualized decisions as to the rights and obligations of people exercising their sincerely held religious beliefs.
  • Stay vigilant, and know you’re not alone.