Proposed Research Project

The following is a research proposal done as part of a class.  I may never do this project, and while my claims here are supported by the evidence that I found, this is far from a completed project, and so can't be taken as a solid argument.

Discussion of the Topic:

          The topic of this research project is the complex and seemingly contradictory histories of the Constitutionality of religious practices inside the United States Government. While the primary study will be on the federal level, some important state cases, like the 1927 Scopes trial, may also be examined. It may seem that until the latter half of the 20^th Century there is a tendency for government to endorse religious beliefs and practices (Lewis 2002, 78-80). While that is compounded by the ceremonial and patriotic governmental mentions of “God” (Newdow v. Rio Linda 2010, 3877), it is a mistake to believe that the Constitution allowed any level of government to endorse religion, or prefer religion over non-religious beliefs (Schauer 1996, 444).

          The Supreme Court is part of a long history of deliberation on the First Amendment, one that finds its beginning with the founding fathers. Cases often cite non-legislative writings to interpret the intent of and usage by the founders (see footnote 11, Newdow v. Rio Linda 2010, 3888). The aim of this paper is to show how precedents in those cases have shaped the debate, and make sense out of the seemingly conflicting decisions. There is an underlying principle of secularism, a promise of “governmental neutrality toward religion”, that has been present the entire time (Ledewitz 2011, 3).

          Legislators have passed laws and government officials have set policies that unduly supported religion, or endorsed religious behaviors in the government, but when those laws/policies were challenged, they failed the tests of the Supreme Court (Wallace v. Jeffree 1985; Abington School District v. Schempp 1963; Engel v. Vitale 1962). Additionally, the free exercise of religion has been at odds with civil laws. The courts have upheld those laws with the same stringency shown when striking down laws that endorse religious activities (Oregon v. Smith 1990).

          One confusing aspect is that the Court seems to rule in favor of religious freedom in one case and against it later. This might seem arbitrary, but those decisions, while occasionally biased (Green 2012, 6), are well reasoned, and in combination with the dissenting opinions, one can map out the principles and the boundaries between government and religion. This project aims to uncover the “wall of separation” (Jefferson 1797) from the cultural and legal debris that hides and confuses the issue.

Proposed Argument:

          The “God” of the government must, by Constitutional definition, be a religiously empty concept, not an endorsement or practice of any religion or religious belief, and the Supreme Court has continually ruled along those lines. This secularist reading is essential to maintaining religious freedoms for all, and despite claims from modern scholars, this was the intended reading of the First Amendment and is well supported by Supreme Court decisions.

Survey of Scholarship:

          To illustrate the complexities of Constitutional interpretation, one can consider the various positions that scholars take, like the two approaches to the Establishment Clause. The “accommodationist” view, like that of prominent conservative politicians, looks toward the original intent of the clause as means to prevent a state-established religion, and sees no conflict in the government aiding religion (Miller 1996, 7). The second approach is the “separationist” view, which holds that there should be a strict separation between government and religion, which allows no aid from one to the other (Miller 1996, 8-9). 

          Robert Miller gives equal weight to both, implying that they are equally legitimate, and have the same authority, but the accommodationist view is not found until the resurgence of Protestantism in 20^th Century (Miller 1996, 7). It is not supported by the writings of the founding fathers, or the Court's decisions. I will argue that the intent of the law, in combination with the commentaries of the founding fathers, and the precedents of the Court, entail a strict secularist reading of the First Amendment, where support for religion and government infringement on religious practices must be for a legitimate civic reason.

          That is not to say that religion is barred from the state, as Bruce Ledewitz argues is happening, but that legal matters should be examined form a secular viewpoint. Ledewitz claims that it is essential for religious and secularists to find a common ground that does not remove religion completely from the government, but finds secular meaning in religious messages (Ledewitz 2011, 246-7). One might have religiously inspired convictions that find a legitimate secular reason to adopt them as law, the believer may even have a religious duty to seek such laws, but everyone has a Constitutional right to advocate for laws in accordance to one's own conscience (Cuomo 1984, 449).

          In this way, the bounds between religion and state often seem muddled. Thomas Lewis argues that the 20^th Century's redefinition of public and private spheres has caused secularism never before seen in the American government (Lewis 2002, 79-80). Like Miller, he has failed to consider, or downplayed the writing of the founding fathers, like many of Jefferson's works (among others) that show his attitude about religion and government (Jefferson 1797).

          Steven Green explores the “school issue” in the late 1800s when the first public schools were founded as alternatives for private religious schools (Green 2012, 7-10). He uses that debate to contextualize the holdings and public backlash that has occurred since the Court first established authority over the states in the 1940s (Green 2012, 3-8). This suggests that the debate has cultural foundations that predate the spans examined by Miller and Lewis. Since the first case to invoke the Religious Clause was in 1947 (Green 2012, 4), I will use Green's work as a model to fill in the gap between the founding of the nation and the beginning of the Court's involvement.

          This will require that I demonstrate that Frederick Schauer's argument that the philosophic foundations for a secularist reading, which neither systematically supports nor detracts from religious and non-religious beliefs, is founded on the harm principle; liberty should only be restricted when it would cause harm to others (Schauer 1996, 309-310; 444-5). The goal is to show that the intellectual linage of that thought is traceable to the founding fathers, and establish it as an underpinning to liberty restricting decisions.

Analysis of Primary Sources:

          My main primary sources are the court cases, which are accessible through legal libraries, databases like LexisNexis, websites, document retrieval services, ILL from depositories, and directly from the courts. They include a wide range of information, and are, in themselves, works of exquisite legal scholarship.

          While they often offer detailed accounts of how the Court reached a verdict, it must be noted that the view from the bench cannot be taken as proof of how things actually were. The Court is in a unique position to gather evidence in ways that are not available to other sources. However, the procedural rules that govern admissibility of evidence create a selection bias for which researchers must compensate. Each case is mainly focused on answering one narrow legal question, but in seeking that answer, they pull in a significant amount of related information.

          To illustrate one source of confusion on the topic, I will use newspaper articles, and other media reports on the cases to contrast the decisions with their portrayal to the population. The articles can be retrieved via the UA Library and associated databases, like America's Historical Newspapers, Historical Chicago Tribune, Historical Los Angeles Times, Historical Washington Post, ProQuest, and others.

          An example of how this would factor into the project would be to contrast Oregon v. Smith with the coverage in Marcus Ruth's Washington Post article. In Ruth's attempt to convey the essential details of the case, he neglected to report the complexity of arguments and the depth of cited precedents, which might make the decision seem less authoritative than it actually was. Although, in providing analysis and reactions to the case, he offers researchers a jumping-off point to further contextualize the case, and find other potential primary sources, like law professor Michael McConnell, and Steven Shapiro of the ACLU, both having been quoted in Ruth's article.

          Other primary sources include things like the assertion that the United Sates is not a Christian nation found in Article 11 of The Treaty of Tripoli of 1797. Collections of the founding father's writings about religion and the government will be used to support the claim that the basic secular principles were present from the founding of the nation. For instance, Thomas Jefferson's 1802 letter to the Danbury Baptists, where he coined the phrase “a wall of separation between Church & State [sic]”.

Conclusion:

          Despite the sea of modern scholarship, this issue continues to be highly controversial. While this project is challenging, tracing the history of the underlying principles used by the courts will provide a deeper understanding of the boundaries between religion and the government. Taking a strict secularist reading of the history of the laws and decisions shows that religious neutrality has supported religious freedom.

Bibliography

Secondary Sources:

Green, Steven. 2012. The Bible, the School, and the Constitution: The Clash That Shaped the Modern Church-State Doctrine. New York: Oxford U.P.

Ledewitz, Bruce. 2011. Church, State, and the Crisis in American Secularism. Bloomington, Ind.: Indiana U.P.

Lewis, Thomas. 2002. The Bill of Rights. Pasadena, CA: Salem Press Inc.

Miller, Robert. 1996. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Waco, TX: Markham Press Fund of Baylor U.P.

Schauer, Frederick. 1996. The Philosophy of Law: Classic and Contemporary Readings with Commentary. Fort Worth, TX: Harcourt Brace College Publishers.

Primary Sources:

Cuomo, Mario. 1984. “Religious Belief and Public Morality: A Catholic Governor's Perspective”. Frederick Schauer. 1996 The Philosophy of Law: Classic and Contemporary Readings with Commentary. Fort Worth, TX: Harcourt Brace College Publishers.

Garvey, John. 1993. “The Pope's Submarine”. Frederick Schauer. 1996 The Philosophy of Law: Classic and Contemporary Readings with Commentary. Fort Worth, TX: Harcourt Brace College Publishers.

Jefferson, Thomas. 1802. “Jefferson's Letter to the Danbury Baptists: The Final Letter, as Sent.” Library of Congress Information Bulletin June 1998 Vol. 57, No. 6.

Marcus, Ruth. 1990. “Court: States Can Ban Peyote in Rites: Religious Freedom Does Not Justify Breaking Valid Law, Scalia Says.” The Washington Post (1974-Current file). April 18, 1990. ProQuest.

Tripoli (Libya). 1797. Treaty of Peace and Friendship Between the United States of America and the Bey and Subjects of Tripoli of Barbary. Philadelphia: United States Treaties. Available from The American Antiquarian Society and NewsBank Inc.

Court Cases by subject:

These are not the only cases that should be considered, but cases that established precedents that have been used, or were otherwise significant. Please note that I am using the standard legal citation for cases in order to maintain the information that is presented in that style and to aid retrieval of the cases.

Free Exercise

Employment Division, Oregon Dept. of Human Resources v. Smith 494 U.S. 872 (1990).

School

     Prayer and Devotionals

Abington School District v. Schempp 374 U.S. 203 (1963).

Engel v. Vitale 370 U.S. 421 (1962).

Wallace v. Jeffree 472 U.S. 38 (1985).

     Funding for Private Schools

Everson v. Board of Education of Ewing Township 330 U.S. 1 (1947).

Lemon v. Kurtzman 403 U.S. 602 (1971).

     Evolution as a subject

Epperson v. Arkansas 393 U.S. 97 (1968).

Scopes v. State 154 Tenn. 105 (1927).

Use of “God” as Historical/Patriotic/Ceremonial

Aronow v. United States 432 F.2d 242 (9^th Cir. 1970).

Newdow v. Rio Linda Union School District 597 F.3d 1007 (9^th Cir. 2010).