The First Amendment of the US Constitution reads in full, “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.”
In this article, I will be specifically focusing on the first part of the amendment that deals with religion with what is referred to as the Establishment Clause, “Congress shall make no law respecting an establishment of religion,” and the Free Exercise Clause, “Congress shall make no law … prohibiting the free exercise [of religion].” In essence, the First Amendment says with regards to religion that the government isn’t to make any law that is purposefully favorable to a specific religion, church,or any other religious institution, but neither should its laws infringe upon religious practice. This seems simple enough. Practice whatever religion and the government won’t stop you, but neither will it officially endorse you.
Many, including the Supreme Court, have recognized that there is a tension between the two clauses. In 1973, the Court said, “this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses,” and it echoed a similar sentiment in 2004, “These two Clauses … are frequently in tension.” Legal scholars generally contend that there is at least some tension between the two clauses. They have proposed various methods to interpret and reconcile the clauses, or, at least find a balancing heuristic between them.
In general, when these two principles come into conflict, the Court has favored Establishment over Free Exercise, or as some regime-jurists might put it,the Court has held onto a stronger notion of the Establishment Clause and a weaker notion of the Free Exercise Clause. A landmark case occurred in 1879 with Reynolds v. United States and in 1890 with Davis v. Beason, where US anti-polygamy laws came into conflict with polygamous practices of the Mormon church. In both cases, the Supreme Court held that the Free Exercise Clause is not absolute and your right to exercise your religion ends where the state and federal government police action begins. Thus, the “wall of separation between Church and State”, as Thomas Jefferson described it, was deemed more important than the ability to freely exercise religion.
Many religious cases later cited the Reynolds precedent. Even in cases like Cantwell v. Connecticut (1940), which ruled in favor of religion, the Court still clearly established the belief-action dichotomy: you are allowed to freely believe whatever your religion tells you, you are not always allowed to act on those thoughts. There are many issues with this, as it could potentially permit literally any law (eg. making going to a religious building a punishable offense) as long as it didn’t restrict what people privately thought about God. Other problems arise from the questionable notion of a hard dichotomy between thought and action since many religions reject this dichotomy and assert that thought and action are interlinked– such as the various sins in Christianity that stem from mere thoughts in the mind.
While several court cases have used this as a clear boundary, court cases have increasingly relied on either “strict scrutiny”– where government laws must serve a compelling state interest and be unable to be reformulated in a way that doesn’t violate religious expression – or “neutrality”, which upholds laws that seemingly violate one’s free exercise as long as the law did not specifically target religion. Under the strict scrutiny method, the Court, in Sherbert v. Verner (1963), allowed a Seventh Day-Adventist, who did not work on Saturday due to religious imperatives, to collect unemployment benefits even though she turned down several job offers which required her to work on Saturday. Here there was no law preventing her from working on Saturday and expressing her religion –she simply wouldn’t be able to collect unemployment benefits – yet she won on first amendment grounds.
Likewise, in 1972, the Supreme Court decided in Wisconsin v. Yoder that an Amish family could prematurely take their children out of the school system. No belief-action dichotomy was used even though, just like with the Mormons, the Amish family clearly violated the law to express their religion. However, in 1990, a Native American – who smoked peyote as part of religious ceremonies – lost his job and was unable to collect unemployment benefits due to being fired over drug use (similar to the Verner case). He then sued, and, in Employment Division v. Smith, the Court ruled against him using the neutrality rather than strict scrutiny method. The Court said the law had a legitimate interest in curbing drug use, and it didn’t specifically target any religion. The Court wrote, in explaining its ruling, that “[t]o make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ [ie. applying the strict scrutiny method] – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ [a direct quote from the Reynolds opinion] … [which] contradicts both constitutional tradition and common sense.”
Due to a slew of federal laws and new court cases on this topic, the Court now tends to apply either the neutrality method or the strict scrutiny method – depending on the specifics of the case. So we may characterize the Court’s approach to balancing issues of church and state as that of eclecticism and pragmatism rather than consistency and principle. If Mormons want to engage in polygamy, which was found to be especially reprehensible at the time, that’s deemed wrong and the state trumps the church, but if an Amish family wants to take their children out of school, a relatively benign request, then that’s fine and an exception can be made. This resort to a realpolitik balancing act is to be expected since it reflects the fundamental contradiction of the Establishment Clause and Free Exercise Clause with each other, but more generally of secularism and religious tolerance.
As mentioned above, the Court has several times allowed that there is at least a tension between the two clauses. However, some jurists have challenged this notion of the two being at fundamental odds with each other. Law professor Carl Esbeck argues that these two clauses are not in contradiction, but are rather simply complementary “for each clause in its own way was a ‘negative’ on powers that might have been implied from the original Constitution. Two ‘negatives’ cannot conflict.” The Free Exercise Clause – “the religious rights of individuals”– and the Establishment Clause – “the ordering of relations between government and religion”– are, Esbeck says, “altogether different enterprises.” Esbeck argues if a church were to agitate for some official state endorsement, they would have the freedom to do so, and the Establishment Clause will only restrict the government (not the religion) from acting on such agitation. Thus, Free Exercise and Establishment are preserved in harmony, not in contradiction.
However, a simple examination of this shows this logic to crumble. In the same way the great logician Kurt Gödel used the liar’s paradox to throw the foundations of mathematics into question, we can do something similar to the First Amendment. Imagine a religious group suing the government arguing the very existence of a secular state, according to its holy books, violates its freedom of religion. Assuming the Court hears this case, it can either rule in the religion’s favor upholding the Free Exercise Clause, violating the Establishment Clause and affirming that the very existence of the government is in contradiction with religious liberty, or it can rule against the religion by upholding the Establishment Clause and violate the Free Exercise Clause and perhaps default to the problematic action-belief dichotomy. Both options push the secular state to its very limit and force it to either admit there is no possibility of free exercise under secularism or there is no possibility of separation between church and state. That Esbeck and others are unable to see this, or simply don’t view this as the fundamental issue to solve, is no surprise. Carl Schmitt reminds us of regime-jurists in The Nomos of the Earth, “jurists of positive law, i.e. of constituted and enacted law, have been accustomed to consider only the given order and the processes that obtain it. They have in view only the sphere of what has been established firmly … They are content to reject as ‘unjuridicial’ the question of what processes established this order.”
At best, the sentiment that there can be freedom of religion yet a hard separation between church and state reveals a very watered-down view of religion, which is merely a “private affair” between an individual and his Creator, ignoring the actual religious realities of many sincere believers since it assumes there will never be any serious conflict between state and religious commands. At worst, and I will show in actual reality, this sentiment is a militantly atheistic statement which does not care what religion says but simply demands conformity to the government, even at the expense of not fully practicing your religion. The US explicitly took this position for a time with its belief-action dichotomy before reverting to an eclectic and pragmatic balancing act.
Even assuming the best intentions behind the great secularizers, without any coordination between church and state (such as Orthodox Symphonia, Catholic Integralism, or Presbyterian Theonomy), there will be no way for a man to be both a good citizen and a devout believer when the two disagree. He will either face martyrdom or apostasy. This is due to fundamentally contradicting worldviews. The secular state assumes a certain worldview with regards to its constitution, state ideology, and its authority to compel its citizens, while at the same time officially tolerating various religions who ground their authority in an entirely different source, yet also claiming the power to compel its members.
This is especially offensive to Christians who hold to presuppositional apologetics, which asserts that Christianity is true due to the impossibility of the contrary, and that our moral-epistemology is absolute, and necessarily excludes all other religions and worldviews– including atheism. As Greg Bahnsen explained it, “what the Christian sets forth as the Bible’s worldview – as authoritatively revealed by God – is the indispensable foundation for proof itself – for the intelligibility of reason and experience, the ability to make sense of knowing anything whatsoever. At this point, the unbeliever’s choices are either to acknowledge the truth revealed by God’s Word (and repent of his sins, including intellectual autonomy) or to reject rationality itself.”
From a moral-epistemological (how we know and ground morality) perspective, the secular state is self-contradictory since it claims to be able to somehow ground moral truth outside of religion while permitting people to exercise religions which claim that truth must be grounded on faith. So the state inherently contradicts religion and, yet, asserts its neutrality and compatibility –despite their contradicting claims on truth. Additionally, the secular state reserves the right for itself to overturn various religious edicts that aren’t aligned with the state’s edicts. This shows that although they “tolerate” other religions they are unable to fully accept them. They thereby place themselves above religion, acting as the ultimate sovereign who is able to overturn the demands of the various religions, showing their tolerance to be a sham. The secular state only tolerates religion when it is convenient for them, not when it is hard, which is where true tolerance would show itself.
The secular state is thus based in placing their own moral-epistemology over any other worldview, including that of any religion. The Enlightenment project of secularism and the “neutral state” is shown to be the militant atheism it truly is. If a man has to choose between being a good citizen and a pious believer then, says the state, the man ought to be a good citizen. At best, the man can ask for an exception via the state’s courts, which he may or may not be granted. If he is granted the exception, the man would be allowed to exercise his religion only due to the allowance of the state, not on behalf of his Creator. We must again go back to the words of Carl Schmitt, “Sovereign is he who decides on the exception.”
Having opened this article from the holy book of Atheism, I will end with the book of God, “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon.” – Matthew 6:24.
