William & Mary Law Review Volume 36 (1994-1995) Issue 3 Article 2 March 1995 The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory Laura Underkuffler Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Laura Underkuffler, The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 36 Wm. & Mary L. Rev. 837 (1995), https://scholarship.law.wm.edu/ wmlr/vol36/iss3/2 Copyright c 1995 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 36 MARCH 1995 NUMBER 3 THE SEPARATION OF THE RELIGIOUS AND THE SECULAR: A FOUNDATIONAL CHALLENGE TO FIRST AMENDMENT THEORY LAURA UNDERKUFFLER-FREUND* I. INTRODUCTION .............................. 838 II. THE ATTEMPTED SEPARATION OF THE RELIGIOUS AND THE SECULAR: THE STATE OF SUPREME COURT JURISPRUDENCE ......... 848 III. THE HISTORICAL RECORD: RELIGION IN SOCIETY AND GOVERNMENT ..................... 874 A. Introduction .............................. 874 B. The Background Against Which These Questions Arose: Intolerance, Persecution, and State Support for Religious Establishments ... 879 * Associate Professor, Duke University School of Law. I would like to thank the following persons for their invaluable contributions, in ideas, critiques, and support, during the years of this work: Akhil Amar, Perry Dane, Thatcher Freund, Alon Harel, Burke Marshall, Judith Miller, H. Jefferson Powell, and Barbara Safriet. I am also very appreciative of the many useful comments and critiques that I received on a very early draft of this work from members of the Faculty Workshop at the New York University School of Law. I am grateful to the Eugene T. Bost, Jr. Research Professorship Fund, of the Charles A. Cannon Charitable Trust, for supporting re- search involved in this project. I am also grateful to the Yale Law School, which generously supported this project, and to whose faculty a large portion of this work was submitted in partial fulfillment of the requirements of the J.S.D. degree. 838 WILLIAM AND MARY LAW REVIEW [Vol. 36:837 C. The Core Freedom: The Primacy of Freedom of Conscience ....................... 891 D. Protection of Freedom of Conscience: The Meaning of "FreeExercise" of Religion ....... 919 E. The Meaning of the Second Great Principle: Freedom from Establishment of Religion by Government .............................. 930 F. Summary and Conclusion ..................... 956 IV. AN ALTERNATIVE APPROACH TO FIRST AMENDMENT GUARANTEES ................................ 961 A. Introduction ............................... 961 B. Free Religious Exercise ...................... 962 C. Freedom from Establishment of Religion by Government ............................... 968 D. The HistoricalApproach: Is the Irreconcilable,Reconciled? . 982 V. SOME FURTHER REFLECTIONS AND CONCLUSION ..... 985 I. INTRODUCTION The First Amendment to the Constitution of the United States guarantees the free exercise of religion and prohibits the estab- lishment of religion by government.' In dozens of cases decided in the past three decades, the Supreme Court, as the institution designated under the federal system to ultimately resolve these issues, has struggled to identify coherent principles of interpre- tation. The difficulties inherent in attempting to reconcile the prerogatives of individual belief with the majoritarian acts of governmental bodies have created a jurisprudence of complex, conflicting, and often undulating principles. The emergence of a new kind of religious challenge has re- cently compounded the problems faced by the Court. In the past, free exercise and establishment challenges generally were posed by religious adherents seeking exemptions from oppressive majoritarian action or by nonreligious (or nonconforming reli- gious) individuals seeking to strike down legislation that was 1. See U.S. CONST. amend. I ("Congress shall make no law respecting an estab- lishment of religion, or prohibiting the free exercise thereof . "). 1995] SEPARATION OF RELIGIOUS AND SECULAR 839 seen as advancing the cause of traditional religious groups. In both cases, the complaining parties accepted-indeed, advocat- ed-the private nature of religious experience and sought its separation or protection from the public sphere. During the past few years, a new kind of claimant has emerged. Whether reli- gious employers resisting the enforcement of state and munici- pal civil rights laws2 or parents objecting to the establishment of "secular humanism" in the public schools,3 these claimants share a fundamental characteristic: they reject the assumption of the separation of the religious and the secular in society and in government. They contend instead that religious beliefs and values are an integral and inseparable part of all aspects of their lives. Although claimants with such views have certainly not been unknown in the Supreme Court,4 the recent public assertion of such claims by more traditional religious groups presents a new and difficult challenge for existing First Amend- ment jurisprudence. The implication of nonseparationist claims-that all state activity potentially involves Free Exercise 2. See, e.g., Under 21 v. City of New York, 482 N.E.2d 1 (N.Y. 1985) (objection by the Roman Catholic Church, Agudath Israel, and the Salvation Army to the en- forcement of state and municipal civil rights laws prohibiting discrimination in em- ployment on the basis of religion, sex, marital status, or affectional preference, as an infringement of the employers' rights to free religious exercise); Dayton Christian Sch., Inc. v. Ohio Civil Rights Comm'n, 766 F.2d 932 (6th Cir. 1985), rev'd and remanded on other grounds, 474 U.S. 978 (1986); State v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985), dismissed for lack of juris., 478 U.S. 1015 (1986) (similar claims by fundamentalist Christian groups). 3. See Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) (contention that a prescribed set of reading textbooks in the public schools contained acceptance of evolution, secular humanism, futuristic supernaturalism, and pacifism, in violation of the Free Exercise Clause), cert. denied, 484 U.S. 1066 (1988); Smith v. Board of Sch. Comm'rs, 655 F. Supp. 939 (S.D. Ala.) (claim that "a man-centered belief-system, . [known] by the appellation 'secular humanism,' [was] promoted in the public schools to the detriment of [the complainant's] children's First Amendment right of free exercise, all in violation of the Establishment Clause"), rev'd, 827 F.2d 684 (11th Cir. 1987); see also Crowley v. Smithsonian Inst., 636 F.2d 738 (D.C. Cir. 1980) (challenge to two exhibitions at the Smithsonian Museum of Natural History, on the ground that they established secular humanism in violation of Free Exercise and Establishment Clause guarantees). 4. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (Native Americans); Wisconsin v. Yoder, 406 U.S. 205 (1972) (Amish); Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) (Mormons); Reynolds v. United States, 98 U.S. 145 (1879) (Mormons). 840 WILLIAM AND MARY LAW REVIEW [Vol. 36:837 or Establishment Clause guarantees--challenges the limits of First Amendment doctrine. Nonseparationist claims present the most difficult challenge because they attack what I shall argue to be the deepest motiva- tion and operating principle of existing First Amendment juris- prudence: the separation of the religious and the secular within the individual, in society, and in government. While acknowl- edging the pervasiveness of religious belief in many aspects of individual and collective life, the Court's majorities have as- sumed that such separation can be made-indeed, must be made-in determining the scope of First Amendment religious protections and prohibitions. This belief has been presented as something required by the history, purposes, and spirit of the Amendment; and it has, accordingly, been enshrined as the core, first principle of First Amendment jurisprudence. The Supreme Court's attempt to separate the religious and the secular is not an aberrational response to twentieth-century society and political culture. It is part of a deeper strain in American politics and government that has gained momentum since the time of the Founding Era.' What was originally at- tempted "disestablishment," or the removal of governmental support of religious institutions, became a model for deeper schism between the religious and the secular spheres of life. As secularism and religious individualism became important cultur- al forces, attitudes hardened toward the involvement of the religious in public life.' Walter Berns expressed a not uncom- mon view when he listed the Ku Klux Klan, the Know-Nothing 5. The "Founding Era" for the purposes of this study will be understood to en- compass, roughly, the period of 1770-1800. To the extent that individuals who were prominent during that period made later statements which bear directly upon these issues, those statements are included as well. 6. See generally PETER L. BERGER, TIiE SACRED CANOPY 1 (1967) ("Religion was no longer the 'sacred canopy,' investing the existing social order with sacred mean- ing."); STEPHEN L. CARTER, TIE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION