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March 2022

Religious freedom was an idea so foundational to the American Revolutionary War that it was included in the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The dual nature of the Amendment meant that the U.S. government could not create an official state church, and individuals could not be prohibited from being part of any religion or following certain religious beliefs. However, federal, state, and local laws have all put limits on certain practices of religion, and whether those limits should be considered as violations of the First Amendment has been a long-running point of tension in the United States.

The U.S. was one of the first nations to explicitly establish a separation of church and state in its Constitution. The colonial experience of being subordinated to the Church of England and the British monarchy had engrained in Americans a deep dislike for the imposition of religion. The Founding Fathers believed that this separation would help eliminate, or at least minimize, tension between different states and people groups by not imposing a particular religion in either the executive or legislative branches of government. However, tension still exists between the federal and state level courts, as the former has frequently overridden the rulings of the latter, arguing that certain state laws have been in violation of the First Amendment right.

A notable example of this was in the 1971 Lemon v Kurtzman case regarding religious freedom in education. In 1968, the Pennsylvania Non-public Elementary and Secondary Education Act was passed, allowing the Superintendent of Public Schools to reimburse private schools for the salaries of teachers working in the private elementary system. The U.S. Supreme Court ruled in an 8-0 decision that this Act was unconstitutional as it violated the Establishment Clause in the First Amendment, and specifically that it established a relationship between state funds and church education. One judge presiding over the Lemon v Kurtzman case determined that Pennsylvania’s Act was unconstitutional as “The very restrictions and surveillance necessary to ensure that teachers play a strictly non-ideological role give rise to entanglements between church and state.”

From the 1971 ruling came the ‘Lemon Test,’ a three-pronged test used in American courts to date that measures the validity of laws and their adherence to the Establishment and Free Exercise Clauses in the First Amendment. The first test ensures that the proposed law or statute has a secular legislative purpose. The second test ensures that the principal effects of the proposed law or statute do not advance or prohibit any given religion. The third test ensures that the proposed law or statute will not ‘excessively entangle’ the church and the state. This test prevents the U.S. Government, whether it be at the local, state, or federal level, from abandoning neutrality and acting with the intent of promoting a particular religious point of view.

Lemon v Kurtzman set clear and acceptable boundaries for when the state had become too involved with religion. In 2005, the U.S. Court of Appeals for the Sixth Circuit ruled that a display of the Ten Commandments tablets in a courthouse in Kentucky was unconstitutional, using the Lemon Test as the test of validity (McCreary County v American Civil Liberties Union). The government’s history of religious freedom is filled with court cases that have set competing precedents: some judgments have ruled in favour of the individual’s freedom to exercise his or her religious beliefs, and others have ruled that certain religious practices actually violate the right to equality and freedom from discrimination of other individuals.

It is important to note the historical context in which the American constitution was written, and by whom it was written in order to understand why the separation of church and state is still controversial today. At the time of the Revolutionary War, the majority of individuals living in the thirteen colonies were of European descent – specifically, of British descent. The Founding Fathers may have agreed to a separation of church and state, but due to the nature of American religious configuration at this time, religious freedom applied primarily to the long-established religious communities. These Christian denominations were guaranteed the freedom to remain undisturbed by and independent from government surveillance and authority.  This assertion reflects the main point of contention regarding religious freedom in the United States today. The big question in congregations and courtrooms alike is, how can American citizens celebrate their religious traditions and their corresponding heritage without being exclusionary to other groups?

The first example of a general level of acceptance of religious pluralism came in 1960, when the traditionally Protestant American population elected the first Roman Catholic president, John F. Kennedy. However, the United States was not immune to the advent of modernization in domestic politics and society. In the 1970s-80s, as global trends continued to shift toward secularization, American conservatism experienced a spiritual awakening. Conservative Protestants formed alliances with Roman Catholics in their defence of traditional Christian values, such as the supremacy of Biblical authority and traditional family structures and values. The ‘Religious Right,’ as it became known, fused its love of country with a desire to protect American religious traditions. The political philosophy that emerged out of this evangelical uprising addressed the concerns of Christian conservatives as a series of political issues.  These include a court ban on prayer in public schools, the constitutional right to abortion, and the right of same-sex couples to marry.

The most significant example is the debate on abortion rights which persists in America today. Conservative Christians became the loudest voices in opposition of the 1973 Supreme Court ruling in Roe v Wade, which established abortion as a constitutional right. Reversing Roe became the primary goal of right-wing Christian groups which saw the ruling as an aberration of American justice and Christian morality. For many defenders of this pro-life movement, criminalising abortion would be a fundamental step in realigning American public opinion and morality to traditional Judeo-Christian values.

In contrast, abortion rights defenders claim that Roe v Wade had little effect on the personal religious practices of its opposers. For pro-choice advocates, the First Amendment cannot compel citizens to act in accordance with the beliefs and values of religious groups. Their argument is that the personal beliefs and practices of individuals who defend abortion rights and who have abortions themselves do not impede the ability of Christian individuals to remain faithful to their beliefs and practices. Additionally, the example of Roe v Wade demonstrates how Christian conservatives believe their religious liberty to be under threat. If the Founding Fathers’ desire to maintain a separation of church and state was upheld in the 20th century, court decisions – such as the decriminalization of abortion – would have very little effect on religious groups who may oppose such a ruling on religious grounds.

Another notable case in which Christian conservatism is perceived to be threatened is Obergefell v Hodges, in which the Supreme Court ruled that the fundamental right to marry is guaranteed by same-sex couples in all U.S. states and territories. However, Masterpiece Cakeshop v Colorado Civil Rights Commission (2018) ruled that the Colorado Commission did not employ religious neutrality. It thereby violated Masterpiece owner Jack Phillips’ right to refuse creative services, such as making a custom wedding cake for the marriage of a gay couple, based on his religious beliefs. While this case had an outcome favourable to the Christian conservative group, the Supreme Court did not rule on the broader issues of anti-discrimination, free exercise of religion, and freedom of speech, due to the complexity in definitions of religious neutrality.

As a state founded on the principles of religious freedom, the United States has often presented freedom of religion as a central focal point of its foreign policy.  American opposition to Communism throughout the Cold War often hinged on Soviet Communism’s restriction of religion.  Concern for the status of religious freedom around the world led to the passage of the International Religious Freedom Act in 1998.  The Act established the US Commission on International Religious Freedom, a standing body that informs US foreign policy on the topic.

Nevertheless, Christian conservatives have demonstrated a growing concern over the perceived erosion of their influence and rights in the contemporary United States.  The election of President Donald Trump in 2016 marked a notable intensification of polarizing activism and rhetoric surrounding the role of faith in American politics. The appointment of justices to the Supreme Court has been a focus of the American religious right for decades.  With the advent of a conservative majority on the court, it seems likely that judicial decisions will move in a direction that affirms more traditional claims to religious freedom as a means of including religious views in the formation of public policy.  Balancing claims of religious freedom and the rights of women and various minorities remains a significant challenge for a nation founded on claims to religious freedom.    

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