The Establishment Clause

The Paradoxes of Secular American Legal Philosophy 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” –Amendment I of the U.S. Constitution

In what has become known as the “Establishment clause”, the U.S. Constitution laid down the foundations for a “secular” society to which the United States abides by to this day. In the interpretation of this foundational document, the courts have been forced to grapple with the practical meaning of secularist ideology in law. Law itself is an expression reflecting the convergence of a particular society’s ideals of morality, economy, and stability. Law is a tool that reflects a society’s values; not every law is instrumental towards a stable state or greasing its economic wheels. The lofty notions of “life, liberty and pursuit of happiness” guaranteed to all are not administrative or economical. The criminalization of slavery, women’s suffrage, the civil rights movement, etc. are all expressions of quintessential American moral virtue.

It is nearly impossible to extricate the religious underpinnings that ground a society’s view of morality. Morality is based on the idea of natural law, where Man has a certain dignity on the basis of simply being Man. While movements such as humanism, freethought and consequentialism search for truth and virtue without reliance on scripture and dogma, morality lacking a basis in some conception of divinity stands on thin ice. And any concept of divinity, even one based outside of revelation, is religious in nature.

Thus the idea of rigid secularism in law can roam into the woods of paradox. And yet we press onwards as a nation where our government forbids the establishment of religion in law in direct defiance of acknowledging the importance of religion in morality and morality in law. In 1947, the Supreme Court of the United States attempted to tackle the issue of what exactly the Establishment Clause meant in the landmark decision of Everson v. Board of Education. The Court ruled in favor of a New Jersey law that allowed for taxpayer funded transportation of students to both public and private schools, despite the fact that the vast majority of the private schools in the area were parochial Catholic schools. Justice Hugo Black of the majority (and also Justice Wiley Rutledge in the dissent) attempt to delineate the practical implications of the Establishment Clause. Relying upon Thomas Jefferson’s correspondence (and setting aside the admittedly profound debates been originalism and pragmatism in constitutional interpretation), Justice Black stated in the majority opinion:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State. … That wall must be kept high and impregnable. We could not approve the slightest breach.” 330 U.S. 1, 15-16.

Justice Black offers the most profound delineation of the secular state in American legal history. These words codified into law the Jeffersonian metaphor of a “wall of separation” between Church and State. American legal tradition continues to expound upon Justice Black’s opinion, which has in modern times evolved into the three part Lemon test set forth in Lemon v. Kurtzman; that for a law not to violate this metaphorical “wall”, 1) the statute (or practice) has a secular purpose, 2) its principal or primary effect neither advances nor inhibits religion, and

3) it does not foster an excessive government entanglement with religion.

However, Justice Black’s language (and any efforts to explicate on this language for the purposes of law) only offer a partial insight into the meaning of what it truly means to be a secular state. The idealized notions delineated in law offer courts insight into what exactly “breaches” the metaphorical wall between Church and State, but there is a distinct disconnect between what the courts identify as “religion” and how religious beliefs can come to define a person individually and as a society collectively. Explicitly, what the law actually does is prohibit the participation of government in interaction with the institutional and organizational aspects of religion; essentially, the outward manifestations of religion, such as mandatory congregation, religious legal injunctions on food and clothing, and institutionalized acts of prayer.

This is what religion has become in the modern world. A series of outward manifestations lacking internal substance. It has become form without spirit. However, many would argue the most profound transformation that religion can bring is how it can redefine a person’s inner being, meaning a person’s relationship with life itself. Religion can revolutionize how a person interacts with other people, with nature, with institutions, even with themselves. For Muslims, religion is expanded into three spheres: first is imaan, or aqidah, which are the doctrinal beliefs that bind all Muslims; second is islam, or shariah, which are the legal injunctions and prohibitions as both prescribed directly by God in the original sources and through interpretations by scholars by orthodox legal methodology; and third is ihsaan, or tasawwuf, which is the ways in which Muslims achieve inner purity and excellence to be outwardly manifested in all action. All three spheres must be combined by a Muslim in his life in order to achieve the pleasure and goodwill of God. Other religious traditions have similar notions, such as the Buddhist idea of nirvana.

By the way American legal tradition treats religion, the third sphere of Islamic ideology is completely ignored, a problematic notion for Muslims in their ability to practice their religion. In a narration found in the Sahih Muslim collection, The Prophet Muhammad (S) said “God has prescribed excellence over all things” meaning both in action and the object of the action. It cannot be that the Establishment Clause prohibits the prescription of excellence in the public sphere; such a notion is absurd, and yet that is the implication of our current notions of secularism and religion.

So while the American legal tradition’s treatment of religion and secularism has thus far allowed it to avoid grappling with its inherently paradoxical notions of religion, morality, and law, it is ultimately insufficient as the basis for a legal philosophy. So perhaps a rethinking of secularism is in order. American legal tradition needs to be able to allow religious expression in law, but not to an extent where it forces citizens to adhere to any particular tradition they don’t wish to be involved with. The law needs to be able to acknowledge religious underpinnings in morality yet allow law autonomy from any particular religious doctrine.

Ultimately, secularism in American legal tradition needs to be defined as such: where law must be allowed regardless of its existence in any particular religious doctrine. However, a law cannot become law because of its existence in a religious tradition. The critical difference is the justification for the law; the reasoning cannot be simply its existence in any particular scripture. The justification must be framed in terms of benefit to society. Thus, if a law was proposed saying that “Animals to be slaughtered must only be killed using a sharp blade, be treated gently, and be slaughtered quickly” it cannot be ruled out simply because it’s the Islamic prescription on Animal slaughter. It must be debated on the merits of its benefit to society, and that cannot happen if a priori it is ruled out in the previous interpretation of the Establishment Clause. This power is checked by the rest of the first amendment relating to the right to freely practice religion, the right to free speech, free press, assembly, etc. (and in a broader sense by the entirety of American legal tradition).

It’s time the American legal tradition recognizes the shortcomings of its secular philosophy and move towards a definition of secularism free from contradictions. This does not mean compromising the ideals of liberty, but it does mean rethinking how religion and spirituality interact with legal institutions in a secular society. Religion is fundamental in morality, and morality is fundamental in law. A definition of secularism cannot be one where all ties to religion are forbidden in law. It must be able to accommodate the holistic definition of a person that religion can become. And this need not come at the expense of the liberal principles of freedom on which the nation is based. There is room in the American legal tradition for both.