The Peoples’ Constitution: Religion, the Pledge of Allegiance and Loudoun County

By Benedict Lenhart

Freedom of Religion protects all Americans whether they are deeply religious, atheist, or somewhere in between. The Constitution contains two guarantees of religious freedom.

First, the Constitution bars the government from adopting a state religion or forcing any American to adhere to any religious faith or practice. Second, with some exceptions, the Constitution forbids the state from interfering with a person’s religious beliefs or practices. These twin guarantees are found in the First Amendment, which states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

The first section (the subject for today) is called the “Establishment Clause” and the second is known as the “Free Exercise Clause.”

The Founding Fathers and Religion

Some argue that America is worse off because we keep religion out of schools, public buildings and the town square. In fact, our Founding Fathers believed just the opposite. Most supported a clear separation—a wall—between church and state.

Why? Were the Founders atheist? Far from it, most of the Founders were religious men who came to believe that the best way to protect religion was to separate it from the state. They also believed the flip side: government worked best when separated from religion. The Founders had two interlocking goals: they wanted the new American government to prosper, but they also wanted religion to prosper in America. They were acutely aware of the endless religious wars that cursed Europe for centuries, and they wanted America to avoid that sad fate. The Founding Fathers believed that the best way to achieve all these goals was to maintain a wall between church and state. That, anyway, is the theory of our Constitution.

James Madison put it bluntly: The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.”


Easy Cases/Hard Cases

Despite raging controversy over the boundaries of the Establishment Clause, there is broad agreement about the “easy cases.” In America no government—federal, state or local—can set up a church or officially promote one religion over another.  Nor can government favor religion over non-religion. The state cannot force anyone to attend (or not attend) religious services, profess (or not profess) a particular faith, or pay (or not pay) a religious tithe. In America, we take for granted these “core” religious freedoms—they seem obvious. But the daily news is filled with accounts from other nations where church and state are officially joined together, and where citizens are thrown in jail or worse for deviating, even slightly, from the official state religion. Thanks to the constitution, we have avoided that fate in America, but hard questions persist about the exact boundaries of the wall separating church and state, and few examples are addressed below.

School Prayer

The courts agree that public schools can’t require prayer in school or conduct official prayers during school. The Supreme Court has extended this rule to prohibit school-organized prayer at football games and graduation, reasoning that such prayer created “excessive entanglement” between the school and religion and thus violated the First Amendment’s wall between church and state. On the other hand, the court has made clear that students themselves may pray in school or organize their own private prayer activities, so long as they are otherwise consistent with school rules.

Nativity Scenes and the Ten Commandments

These issues are on the knife’s edge of the Establishment Clause. In one famous case, the court allowed a nativity scene in Pawtucket, RI, where the crèche was displayed with many other figures including Santa, reindeer, peppermint sticks, and other wintery scenes. The court said the connection to religion was minor and the religious impact was lessened given the overall winter theme and the presence of many non-religious symbols.
In contrast, another case found a constitutional violation where the nativity scene was not accompanied by many nonreligious symbols, and the words “Gloria in Excelsis Deo” (“Glory to God in the Highest”) were displayed as part of the scene. The lesson from these “hard” cases is that the court will look to the overall context of the nativity scene—whether the overall message is religious or not—in deciding whether it violates the Constitution.

The court takes a similar approach with displays of the Ten Commandments. Roy Moore, formerly a chief justice of the Alabaman Supreme Court and currently a candidate for an Alabama senate seat, was removed from office after refusing to remove from the courthouse a Ten Commandments monument.   The trial judge said:

“[Chief Justice Moore] installed a two-and-a-half-ton monument in the most prominent place in a government building … with the specific purpose and effect of establishing a permanent recognition of the ‘sovereignty of God,’ the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen’s individual personal beliefs or lack thereof. To this, the Establishment Clause says no.”

In contrast, the Ten Commandments appear in the Supreme Court itself, where they are part of a larger display that shows the history and progress of law. The difference between Judge Moore’s case and the court display is one of degree: the latter is allowed because it does not focus primarily on religion.


President Trump’s Travel Ban

President Trump’s so-called “travel bans” are the subject of legal challenges that are still pending. However, at least two lower courts have found that the travel bans raise concerns under the Establishment Clause because they appear to target and disfavor one religion (Islam). The president disputes these findings. However, to the extent these findings stand up on appeal, the travel ban would likely be found to violate the Constitution because the bans would be seen as choosing sides and favoring one religion over another. And government support for “favored” religions runs afoul of the core purpose of the Establishment Clause.

Pledge of Allegiance & Loudoun County

  Loudoun County featured a famous case challenging the Pledge of Allegiance.

In 2002, Edward Myers sued Loudoun County arguing that the Establishment Clause was violated by a Virginia law requiring recital of the pledge in Virginia schools (the law allowed objecting students to remain silent). Myers objected, in particular, to the words “under God” (which were added in 1954) and argued that this amounted to the state favoring religion in violation of the Establishment Clause. The appeals court disagreed, noting that:

“the inclusion of these two words [under God] does not alter the nature of the Pledge as a patriotic activity. The Pledge is a statement of loyalty to the flag of the United States . . .”

With some important exceptions, other courts have agreed with the Myers holding, finding that while the words “under God” may have religious meaning, the broader purpose of the Pledge is patriotic and that any “promotion of religion” is very minor.

“In God We Trust” and Sunday Closing Laws

If we have a wall between church and state, why does our money state “In God we Trust?” Why do we have official Sunday closing laws? How can we allow these things and yet remain true to the Establishment Clause? The answer is part history and part recognition that the Establishment Clause is not absolute. After all, the Declaration of Independence states that all men were “endowed by their Creator with certain unalienable rights” and the Constitution itself refers to its completion date as the “Year of Our Lord 1787” and exempts Sundays when calculating certain time periods.

The courts have struggled to square these symbols with the Establishment Clause. Some argue that these symbols have lost their religious meaning and instead represent civic or patriotic values. Others admit that they retain religious meaning, but argue that the religious aspect is small and does not raise any realistic danger of establishing a State religion. One thing is certain: while the exact boundaries of the wall between church and state are not always clear, the wall itself remains strong.  Since its founding America has largely avoided religious wars, and Americans are not prosecuted for their religious beliefs. These are huge achievements and they have made American stronger. But the wall between church and state is only one side of the constitutional story on religion—the First Amendment also guarantees that Americans can practice their religion free from government interference. That is the subject of the next article.

[Benedict Lenhart is a graduate of Harvard Law School and has taught constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

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