Religious Liberty in the United States: From the First Amendment to "Alternative" Religions

Gaustad, Edwin S. Proclaim Liberty Throughout All The Land: A History of Church and State in America.

Stein, Stephen J. Communities of Dissent: A History of Alternative Religions in America.

Edwin S. Gaustad and Stephen S. Stein both address the American ideal of free religious expression, although they approach the issue from radically different directions.  While Gaustad examines the origins of the 1^st Amendment to the U.S. Constitution and the separation of Church and State across the breadth of American history, Stein adopts the narrower focus of religious dissent, its role in American society, and how religious dissenters are treated.  This allows students of American religious history to use these two volumes in combination to achieve a greater understanding of religious freedom in the United States, the role of religion in American society, and the struggle of the American people to practice universalist religions while accepting the rights of others to worship in different ways.

Proclaim Liberty Throughout All the Land provides Gaustad a medium to explore the parameters of religious freedom in the United States, which he does with the hope that “the foundations of religious liberty can be strengthened and made even more secure,” than they are today (Gaustad, xi).  Maintaining the strength and security of religious freedom is important to Gaustad as it was to the Founding Fathers, who believed that religious liberty was the cornerstone of democracy and the most significant American contribution to the world (Gaustad, x).  Because of the importance many American colonists placed on religious liberty, two separate types of protection are enshrined in the First Amendment to the United States Constitution: a clause preventing the Federal Government from establishing as official any specific religion, and a clause preventing the Federal Government from interfering in the practice of any religion.  For Gaustad and the Founders, this leaves the delicate question of how to draw the line between these two ideals (Gaustad, xi).

Unfortunately religious intolerance of both official and unofficial nature was an important part of American History, both in the Colonial era and more modern times.  Before 1791, Gaustad argues that legal persecution of religious dissenters was common in North American and Europe.  He provides the 17^th century examples of Jews forced to leave New York by its Dutch Governor, and of four Quakers executed for preaching heresy in Boston.  The 18^th century was no better for Americans with alternate religious views: in 1707 a Presbyterian minister was jailed for preaching in New York, and in 1774 several traveling preachers were imprisoned for their beliefs (Gaustad, xiii).

After the adoption of the Bill of Rights in 1791, religious persecution assumed a less official nature, but existed nonetheless.  Through the 19^th and first half of the 20^th century, anti-Catholic bias appeared in magazines dedicated to defeating “Romish corruptions”, the burning of a Massachusetts convent, and the 1850s Know-Nothing Party campaigns against foreigners, Jews, and Catholics (Gaustad, xiv).  In the 20^th century, anti-Catholicism reared its head in attacks on Alfred E. Smith’s Presidential campaign.

However, Gaustad writes that the later part of the 18^th century saw great strides in the extension of American religious freedom, particularly in reaction to the colonist’s perceptions of British abuses.  Great Britain made a habit of imposing political and religious orthodoxy over all conquered territory, including Scotland, Ireland, and the American colonies (Gaustad, 16).  Memories the secular power of Anglican Bishops in England, which many colonists migrated to escape, led some of them to claim that resisting political and religious tyranny were twin causes – political victory without “Liberty of Conscience” was incomplete because the King of England would still have the power to govern their minds (Gaustad, 17).  Opposition to the Church of England caused many colonists to refuse to accept English Bishops despite the fact that only bishops could ordain ministers or confirm young people in the faith.  For some this issue was related to the taxes imposed to support the opulent lifestyles of many Bishops in England, but John Adams took it farther, tying efforts to resist taxation by Parliament to religious freedom, writing that if “Parliament could tax us, they could establish the Church of England with all its creeds, articles, tests, ceremonies, and tithes,” (Gaustad, 19).

Although some states moved to disestablish the Church of England in 1776, Thomas Jefferson and James Madison began pushing for official religious freedom in Virginia in 1777, based on the belief that established churches forced a type of mental servitude on citizens (Gaustad, 22).  Their opponents attempted to take the middle road of providing State support for all Christian churches, but Madison and Jefferson rejected this as requiring the State to determine which churches were Christian, and which were not (Gaustad, 23).

At the Federal level, religious freedom was protected in two places.  The first was the Constitutional dictum in Article 6 that religious tests were not allowed for exclusion of candidates for office.  Despite some opposition, this measure was accepted because some delegates remembered how religious tests were used in England to exclude Catholics and Protestant dissenters alike, and because European Catholic countries also used religious tests to persecute Protestants (Gaustad, 27).  Some of the delegates refused to sign the Constitution without a guarantee that as the first order of Congressional business, a Bill of Rights including protection for religious freedom would be adopted (Gaustad, 29).

The 19^th century saw relatively little action at the Federal level regarding issues of religious freedom, particularly at the Supreme Court.  This is not to imply that religion did not play a role in American politics, just that there was little action by the Supreme Court in enforcing religious freedoms.  Religion was fairly important in political campaigns, as when Thomas Jefferson was falsely accused of being and atheist and anti-Christian in the 1800 election (Gaustad, 35).  Despite this, Jefferson was elected and introduced the concept of a wall separating Church and State; a concept that he believed prevented him from calling for national days of prayer.

However, the Supreme Court did hear a few important cases in the 19^th century.  The first of these was over the glebe lands held by the Anglican Church, which some Americans wanted seized.  The Court sided with the Church, saying that the Revolution did not overturn the Church’s corporate rights, and that the lands belonged either to the Church or its prior owners (Gaustad, 37).   A second case heard by the Court involved colleges founded by religious denominations.  When the states wanted to seize the colleges, the churches sued to keep them.  Again, the Court sided with the churches on the grounds of prior ownership.  Clearly, the justices were acting on behalf of free expression of religion (Gaustad, 39).  However, in what Gaustad calls the biggest case regarding religious freedom in the 19^th century, the Court sided with the Federal government.  In this case, Mormons sued to overturn Federal anti-bigamy laws on religious grounds. The Court ruled that churches were required to obey Congressional Acts that were meant to maintain social order, not limited to acting on matters of religious opinion.  In this case, the court believed that laws governing plural marriage were solely intended for the maintenance of social order (Gaustad, 46).

The 20^th century was much busier in terms of religious freedom cases before the Supreme Court.  Part of this was simply due to the Court’s adoption of the 14^th Amendment as a tool to apply the 1^st Amendment to the actions of the states (Gaustad, 50).  The 20^th century also witnessed an increase in cases as religious plurality led groups to sue over public religious displays, which required that some traditional practices be defended on Constitutional grounds (Gaustad, 51).  Gaustad also believes that the increase was due in part to the increased intrusion of the government in American’s daily lives, with issues of access to birth control, abortion, and sexual practices.

The use of the 14^th Amendment in cases of religious freedom opened new doors for interpretation of the establishment and free expression clauses of the 1^st Amendment.  It allowed the Supreme Court to hear cases where states were using religious tests for officeholders (Gaustad, 53).  It also allowed the Court to address state restrictions of access to contraception and abortion on religious grounds.  In the case of birth control, the court found that Connecticut’s ban on distribution of information related to birth control was not legal, and that states could not limit access to abortions because it effected poor women more than rich women, who could easily travel to areas with legal abortion if necessary (Gaustad, 58).  The Court also relied on the 9^th Amendment, which allows the Supreme Court to identify new rights that represent core interests to society.  In these cases, the Court identified the right to privacy as necessary to the health of American women.

The court also addressed the issues of nativity scenes sponsored by local governments, the use of Congressional and Military Chaplains, and church exemption from taxes.  In the case of nativity scenes, the Court ruled against them on the ground that they implicitly endorsed a specific religious practice, but it also found that Military Chaplains were acceptable because they were necessary to ensure the free expression of religious belief by military personnel and their families.  Clearly, the Supreme Court treads a complicated and difficult path in balancing the demands of the 1^st Amendment.

The issue of the role of religion in public and private schools also appeared before the Supreme Court in the 20^th century, regarding both the establishment clause and the free exercise clause.  Arguments regarding the role of religion in public schools are almost built in given Horace Mann’s influence in developing the American system of public education.  Mann set the standard by insisting that public schools not teach religious dogma, but could teach Protestant Christian values and use non-dogmatic texts and hymns for teaching (Gaustad, 74).  This combined with the early American use of religious primers for instruction to ensure that religion played a high profile role in public schools.  The Supreme Court ruled Mann’s approach illegal in 1869, but issues persisted into the 20^th century.

Gaustad identifies several key issues the Supreme Court addressed regarding religion and public schools: teaching religion in school, practicing religion in schools, and teaching subjects deemed religious in schools.  In these areas, the Court ruled to clearly define what activities violated the establishment clause.  The Court ruled that city schools could not have religious leaders come into the building to teach, but that they could release students early to attend religious instruction (Gaustad, 77).  The rationale was that by having instructors come to the schools, the government was in effect endorsing those religions.  Similarly, the Court ruled that schools could not require prayer at the beginning of the school day (Gaustad, 78), and could only teach portions of the Bible as part of a greater curriculum of study (Gaustad, 82), because both acts are designed to promote worship.  The Court’s ruling regarding teaching portions of the Bible directly relates to the debate over teaching evolution and creationism.  The Court ruled in 1968 that Arkansas could not prohibit science teachers from addressing evolution because the objection was entirely religious in nature.  In 1987, the Court extended this argument to say that the Biblical account of creation was not allowed in the classroom outside the context of examining different religions because it was designed to promote a single religious view (Gaustad, 88).

Gaustad wraps up by addressing the Free Exercise clause of the 1^st Amendment in the 20^th century, an area where the Court sometimes seems schizophrenic due to its frequently changing stances on similar cases.  The right of religious groups to distribute materials is a prime example of the frequent changes of opinion the Court experiences.  In 1942, the Court ruled that states could not require Jehovah’s Witnesses to get permits to distribute religious tracts or asking for donations, but in 1942, the Court reversed itself in a 5-4 decision.  In 2002, the Court reversed itself on this issue again, with Justice Sandra Day O’Connor opining that the idea that citizens need governmental permission to speak with their neighbors is offensive in a free society (Gaustad, 115).

Jehovah’s Witnesses provide the Court with another opportunity to repeatedly change its mind.  In 1940, the Court ruled that religious dissenters could be forced to salute the flag in school in order to promote national unity (Gaustad, 117).  However, just three years later, the Court reversed itself, deciding that compulsory loyalty oaths are counter to democratic ideals.  Justice Jackson wrote that no government official could determine religious or political correctness for other groups that are not are clear threat.

Stephen Stein’s entire work is about the issue of freedom of religious expression, and how it combines with the establishment clause of the 1^st Amendment.  In this way, it serves as a perfect complement to Gaustad’s Proclaim Liberty Throughout All the Land.  Where Gaustad examines the on-going development of religious freedom in the United States, Stein aims at the American History of religious dissent, and how religious dissenters are treated in American society.  The role of the 1^st Amendment is key in preserving the rights of religious dissenters, although it is sometimes amazing that a nation founded by dissenters needs such a formalized arrangement.  Stein’s argument is that while the 1^st Amendment does offer protection from official sanction of religious dissenters, they are frequently the targets of both official and non-official harassment.  This represents an interesting dichotomy when compared with American’s traditional celebration of political dissent (Stein, ix).  Stein’s main question is why religious dissenters evoke such strong negative reactions among Americans (Stein, x).  However, it is possible that Stein falls prey to the idealized notion that political dissent is a valued American trait.  This the conservative attacks on the New York City anti-draft riots during the Civil War, complaints levied at Vietnam War protesters, and the current conservative charge that any question of the war in Iraq or of the War on Terror is treason.

Before launching into the history of religious dissenters, Stein provides a foundation of academic language for discussing dissenting groups, which he believes is necessary to counteract the misuse of some terms in the American media.  Two terms he singles out for special consideration are cult and sect.  These two terms in particular have become increasingly pejorative epithets for certain small religious movements.  Stein directs readers to the original and more useful definitions of these words: cult is defined as the structured worship of, or tending, a deity while a sect is defined as a community that follows a particular leader or ideology (Stein, 5).  To avoid the modern built-in bias, Stein uses the terms alternative religions, outsider religious groups, marginal religious communities, and new religious movements to describe communities of religious dissenters.  The use of neutral language to discuss these groups helps develop an unbiased attitude toward his topic.

The question of religious dissent bedeviled Americans almost from the very beginning.  This is obvious from the nature of the most famous early colonists, the Puritans, who migrated to the New World in order to seek their own religious freedom after persecution by the Church of England.  Of course, the Massachusetts Bay Puritans then turned around to use governmental authority to quash religious dissent when it banished Roger Williams in 1635, followed shortly thereafter by Anne Hutchinson (Stein, 17).  Both Williams and Hutchinson directly challenged the religious doctrine of the Puritan congregations in Massachusetts, with Williams asserting that civil magistrates had no right to enforce religious rules (Stein, 15).  The Colonial and English experience with official religious persecution directly led the to the adoption of the 1^st Amendment to the Constitution.

Following Gaustad’s approach in Proclaim Liberty Throughout All the Land, Stein documents the history of major alternate religious groups in the United States, identifying their origins, beliefs, and the hurdles they faced from the larger American society.  This allows him to illustrate the gap between the ideal of religious freedom and the actuality of religious freedom.  What is interesting is that opposition to religious dissenters migrates from the threat of force in the early 19^th century to legal action during the 20^th century.  In June 1825, two large mobs forcibly returned a teenaged Shaker convert to her family, despite her protests that she did not want to leave the Shaker community (Stein, 50).  The Shakers were a pacifist religious community that moved from England to the Colonies to escape religious persecution, who believed that self-sacrifice was the key to righteousness.  Their refusal to bear arms during the Revolution led many to distrust them, and they suffered physical attacks, as well as charges of heresy (Stein, 52).

The key to some of the persecution dissenting groups faced was frequently their non-traditional social arrangements.  The leader of the Oneida community, John Humphrey Noyes, faced charges of adultery as a result of the group’s free love doctrine that espoused a complex marriage arrangement between the members of the group.  Noyes believed that sex should be part of the greater concept of Christian love, and believed that the complex marriage arrangement would solve problems introduced by the selfishness implicit in traditional marriage arrangements (Stein, 63).

Other alternate religious communities, like the Millerites, Seventh Day Adventists, and Jehovah’s Witnesses, focused on the Second Coming of Christ, which led opponents to ridicule them, or charge them with fraud when they raised funds for projects.  They were also frequently attacked in the mainstream press.  Although the free expression rights of these groups were sometimes restricted by government policies that forced them to obtain permits to distribute literature or raise money, they seem not to raise the ire that groups suggesting alternative social arrangements did.

One exception to this was the Federal Government’s suppression of David Koresh’s Branch Davidian group near Waco, Texas.  When ATF agents attempted to arrest Koresh on firearms charges in 1993, shots were exchanged, and an enduring standoff occurred between Federal law enforcement agencies and the Branch Davidians.  This ultimately ended in an accidental fire and the death of many of the Davidians, including women and children.  Stein portrays this event as an example of Federal persecution of alternate religious communities.  However, he does leave out some important information: in addition to the weapons charges the Davidians faced, Koresh was also accused of having sex with under-aged girls at the compound, which he made his “wives.”  There were also allegations of incest, as some of the girls may have been his daughters with other members of the group.  This does not absolve the Federal authorities of their role in the tragedy at the compound near Waco, but it certainly makes the issues involved less clear.  Stein also does not clearly make the case that the main issue was the religious dissent of the group.

Taken together, Communities of Dissent and Proclaim Liberty Throughout All the Land provide a significant examination of the historical basis for the 1^st Amendment, and how the Supreme Court interprets it.  The also provide a look at how Supreme Court decisions change over time due to changing attitudes, new arguments, and the composition of the Court.  Both texts also clearly show how the 1^st Amendment contributes to the growth of new religious movements, the issues those groups face in American society, and how the Supreme Court’s interpretation of the 1^st Amendment directly affects those groups.