Bill of Rights For Real Life: Religion

0:11 Heat. Heat. [Music] [Music]

0:31 Like no other issue, religion informs our fundamental beliefs about right and wrong and about how we lead our lives. [Music] Yet despite disagreeing on many particular religious questions, today most Americans agree government must not

0:52 force its citizens to embrace or endorse a particular faith. The founders, I think, wanted neutrality. They wanted government to not be assisting religion and encouraging religion. They wanted government not to be discriminating against or discouraging religion. And what they challenged us to do, future

1:12 generations of Americans, is work out what that neutrality means in practice. Early Americans also had their religious differences. Most colonies were associated with a particular faith. And after the revolution, six of the 13 states had governmentup supported churches. One thing our founders did agree on was that the federal government

1:33 should leave the states free to organize their own religious affairs. The First Amendment’s establishment clause reflects that agreement, declaring Congress shall make no law respecting an establishment of religion. The bill of rights was written and intended to apply only with respect to the federal government. Uh so for

1:55 example, the first amendment begins by saying congress shall make no law respecting an establishment of religion and so on and so forth. Uh, the framers clearly intended the Bill of Rights only to protect individuals against violations of their rights by the United States government. Questions about

2:16 exactly what the establishment clause means are as old as the clause itself. In a letter written to assure Baptists in Danbury, Connecticut, that the federal government could not interfere with their congregation, President Thomas Jefferson described the First Amendment as building a wall of separation between church and state. Jefferson’s imagery is so powerful that

2:37 today his words are often mistaken as the First Amendment itself. Despite the importance of religion in America, the Supreme Court remained almost silent on the establishment clause until the 1947 case of Everson versus Board of Education. In Everson, the court found that the establishment clause bound both federal and state

2:58 governments, an important departure from the founders’s original vision. Writing for the majority, Justice Yugo Black invoked Jefferson’s image of a wall separating church and state, and he argued for a very high wall. According to Black, neutrality under the establishment clause meant no level of government could pass laws which aid one

3:19 religion, aid all religions, or prefer one religion over another. Nor may it levy taxes to support any religious activities, or participate in the affairs of any religious group. Though the court upheld a New Jersey policy of paying parents for the cost of transporting their children to Catholic schools, critics argued that Black’s statements reflected an attitude toward

3:40 religion that was more hostile than neutral. When Justice Black wrote Everson, he displayed an amazing suspicion of religion in life, in public life. He thought that religion was really something that had to be kept at arms length. It was almost like it was an allergen in the body politic. So he upheld the program, but he said it was a close call and he went out of his way to

4:01 say that the First Amendment erected a wall of separation between church and state. Despite the string of cases that followed the Everson decision, the court did not develop a single test for spotting violations of the establishment clause until the case of Lemon versus Curtsman in 1971. In Lemon, the court laid out a three-part test ruling that a law or

4:23 program does not violate the establishment clause if A, it has a secular purpose, B, it neither aids nor inhibits religion, and C, government and religion are not excessively entangled. I think the lemon decision is a fair, reasonable, and in general useful way to frame the question, how do we know the

4:45 difference between an unconstitutional act that promotes religion and an act that simply is neutral in regard to religion? Is it the best test that could ever be designed? Possibly not. But I think that it creates and asks the right questions and that the Supreme Court in recent years has given generally the

5:06 right answers. The lemon test is very aptly named. It’s a lemon of a test if ever there was one. What it said was that any action the government took with regard to a religious organization that had either the purpose or the effect of fostering religion or resulted in entanglement between church and state was unconstitutional. Now what that

5:26 meant in practice was that anytime the government was involved with anything religious in order to avoid the effect of fostering religion, it had to have such overwhelming safeguards that it was an entanglement. The result was everything was unconstitutional and religion really left the public square. The court has since used the lemon test to overturn mandatory display of the Ten

5:47 Commandments in classrooms, teaching creationism as creation science, and clergy-led prayer at high school graduation ceremonies. The court did find that religious groups such as voluntary Bible study groups must be granted the same access to school facilities as other secular groups. Recently, Justice Sandra Day Oconor has promoted a new endorsement test. Unlike

6:10 the lemon test, the endorsement test generally upholds government involvement with religious activity as long as such involvement is generally understood not to endorse any associated religious message or teaching. Well, certainly sometimes one can get the impression that it’s too hard to prove endorsement that it requires too much evidence of a

6:32 direct government involvement that says we intend we intend to promote religion to embrace it to endorse it and we want to make sure that everybody sees it. So the evidentiary standard could become so high that it would be next to impossible to demonstrate endorsement. I think Sandra Day O’ Connor’s interpretation of

6:54 her own test so far though is about right. It does not in fact require the impossible require that you prove that every member of a city council or every member of a state legislature intended to endorse religion. It’s enough that there is some evidence of that and the obvious effect of doing so. I really

7:16 don’t think the endorsement test grasps the original meaning of the first amendment. Originally, the first amendment was designed to maintain government neutrality among religions. That is to say, to make sure the government treats Baptists, the way it treats Catholics, the way it treats Jews, the way it treats Muslims. The endorsement test is just like the lemon test in this sense. It’s based on a different view of the first amendment. A

7:36 view that the amendment requires neutrality not only among religions, but between religion and something called irreligion. That’s a mistake because it not only betrays the original meaning of the first amendment, but it requires government to do something that’s basically impossible. It requires government to act as though religion in culture doesn’t exist. And you can’t

7:56 weed religion out of the culture without uprooting the whole culture in the process. While the endorsement test has yet to gain the support of a majority on the court, some justices applied the test during the 2000 term in overturning a Texas law that allowed high school students to vote on prayers to be read at athletic events. At the same time, the court upheld the right of public,

8:17 private, and parochial schools to use computers provided through federal grants. And in 2002, the court ruled that government- funded voucher programs could include private religious schools without violating the establishment clause since any endorsement of religion would come from parents, not the government. As questions surrounding the

8:39 establishment clause have come before the Supreme Court, few controversies have so sharply divided Americans or the justices. Despite the number of cases the court has already decided, critical questions remain unanswered. Can faith-based organizations express a religious message while administering government welfare

8:59 programs? Can public schools require students to observe a moment of silence? And to what extent can public officials express religious beliefs in their speech, their dress, or other displays? The court’s answers to such questions will continue to affect the lives of millions of Americans, no matter what or whether they believe. I’m Tim O’Brien.