Religion and Law in American Society

Collections 

The following sources are apt collections of primary source material on questions of law and political philosophy.

Burtt, Edwin A, ed..  The English Philosophers from Bacon to Mill.  New York: Random House, 1939.

This is a collection of the writings of several important philosophers of ethics and politics from the seventeenth to the nineteenth centuries.  Seleceted writers include Bacon, Hobbes, Locke, Hume, and Mill.  Their writings have shaped Western and particularly American attitudes with respect to government authority and the role of religion therein, and accordingly their original writings shed important light on the nature and importance of religious freedom to Western society.

Hall, Kermit L., ed.  The Oxford Companion to the Supreme Court of the United States.  New York: Oxford University Press, 1992.

The Oxford Companion is a repository of summaries about case law and related concepts emerging from the activities of the Supreme Court of the United States.  Its contributors simplify and explain the legal impacts of major cases decided throughout the court’s history.  While by itself The Oxford Companion is an inadequate source of information on the specific holdings of the court in most important questions, it does focus on cases that attempt to answer important questions, revealing paths for further research.

Stewart, Robert M.  Readings in Social and Political Philosophy.  2^nd ed.  New York: Oxford University Press, 1996.

This collection of original writings from philosophers in the range from the 1600s to the present is among the primary texts used in the Harvard Summer School’s “Introduction to Political Philosophy” course.  The topics of its selected essays include authority, liberty, justice, and democracy.  In particular, the questions of authority (What is the source of a government’s legitimacy?), liberty (What is the nature of freedom, and to what extent should it be embraced?) and democracy (To what extent and in what way should the constituents of society dictate its behavior and each others’ conduct?) address the manner in which religion legitimizes government (if at all), the extent to which its free practice should be guaranteed in society, and the role in which it should play in a representative society.

“FindLaw: Cases and Codes: Supreme Court Opinions.”  n.d.  FindLaw for Legal Professionals.  4 Apr. 2006.  http://www.findlaw.com/casecode/supreme.html

FindLaw is a free repository of case law and federal code.  It provides access to the full opinions, concurrences, and dissents in most disputes that have reached and been decided in the Supreme Court.  Where the importance of case law in the formation of legal consensus on the role of religion in society comes into question, FindLaw provides primary documentary evidence.

Selected primary sources

Political Philosophy

Berlin, Isaiah.  “Two Concepts of Liberty.”  In Stewart.

Berlin’s seminal essay on the nature of freedom summarizes divergent historical viewpoints on its constitution, which he terms the positive and negative views of freedom.  The positive view of freedom holds that freedom is maximized when the greatest extent of diverse, meaningful choice in action is achieved.  The Hobbesian negative view holds that a maximum state of freedom occurs when external interference in one’s capacity to act is minimized.  The role of religion in determining these concepts of freedom, their appearances in American law and society, and the manner in which they shape religious behavior in society makes Berlin’s essay informative to questions posed here.

Dworkin, Ronald.  “We Do Not Have a Right to Liberty.”  In Stewart.

Dworkin attempts to undercut the idea of a generalized “right” to freedom in this essay.  Instead, he contends that the principles upon which a society agrees creates an expectation among its constituents that certain liberties must be expected.  Dworkin’s reasoning can be related to the philosophical bases of the United States and their emergence in law thereby shaping the nature of the religious liberties that have emerged and been justified.

Hume, David.  “Of the Original Contract.”  In Stewart.

Hume, an eighteenth century atheist, attempts in this essay to undercut the idea of the social contract as a realistic generator of political authority and instead frames legitimacy on the basis of social utility.  Elements of Hume’s reasoning may be detected in constitutional American society, making his contentions relevant to the nature of the United States government’s authority and, accordingly, its justifiable power to manipulate religious belief (or, conversely, its lack thereof).

Locke, John.  “A Letter Concerning Toleration.”

This letter, which followed publication of Locke’s Second Treatise, attempts to directly frame the proper relationship between civil society (a secular instrument intended to mediate disputes arising from conflicts over the Laws of Nature) and church society (a sectarian instrument intended to provide for the salvation of the souls of civilians).  In his letter, Locke clearly distinguishes the powers and purposes of each society and begins to describe the framework of a secular government.

Locke, John.  Excerpts from The Second Treatise on Civil Government.  In Stewart.

Perhaps Locke’s most famous work, the Second Treatise frames the purpose and general powers of society and the civil government it creates.  Lockean ideas constitute a clear influence on the Declaration of Independence (a justification for the American Revolution) and the legal principles of the Constitution.  The limited purpose of the government he describes implies the existence of a number of limitations on its activities with respect to religion.

Case Law

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Lemon established a methodology for the assessment of first amendment cases concerning religion before the courts.  The eponymous methodolgy i known as the Lemon test.  It functions on three criteria the negativity of which indicate hat a proposed government action or law is neutral with respect to religion: first, such a law must further a secular purpose; second, a law’s primary effect must be seular in nature; third, the law may not excessively entangle the government with religion.  While Lemon is famous for setting a judicial standard for the assessment of these cases, many legal scholars question the adequacy of the test for answering first amendment questions, and conservative jurists tend to apply it differently (if it all) from liberal jurists.  Lemon suggests that while the Supreme Court might have a strong and active interest in stabilizing the government’s relationship with and distance from religion, turbulent legal and social forces tend to unermine that stability.

Engel v. Vitale, 370 U.S. 421 (1962)

Engel is among the first major Supreme Court cases dealin with the power of the state to mandate prayer in school.  The state of New York created a non-denominational prayer which it required read every morning in each school in the state.  Participation in the prayer was voluntary.  In his opinion, Justice Black noted that the Establishment Clause of the first amendment does not require a demonstration of direct coercion to establish a constitutional violation, and that therefoe the innately religious nature of the prayer (despite its lack of denomination) violates the Constitution as applied to the states.  Engel is among te most noted cases framing the government’s ability to influence the religious beliefs of the nation’s young.

Abington School District v. Schempp, 374 U.S. 203 (1963)

Together with Engel v. Vitale, Abington establishes that school-led voluntary prayer and Bible reading are unconstitutional.  In the case, the school district of Abington township santioned prayer and the reading of passages from the Bible each morningn.  Abigntong permitted students to be excused from the religious activities with the written permission of a parent.  Noting that the activities of the school were innately religious despite the absence of discussion on passages read and the non-compulsory nature of the prayer, the Supreme Court held that the school’s activities constituted an unconstitutional de facto establishment o religion.  Abington represents a trend on the Supreme Court away from even a discrete government relationship with religion and religious activity.

West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

Followig enactments by the state of West Virginia requiring students to recite the Pledge of Allegiance every morning at the risk of expulsion and criminal punishment fo failure to do so, the Supreme Court declared compulsory recitaion of the Pledge unconstitutional in Barnette.  The Court noted critically that the state’s interest in compellingthe education of its youngdoes not extend to requiring its young to state a belief, violating the rights of those who believe hat the oath is tantamount to worship of a false idol.  In effect, the Supreme Court took some of its first steps towards regulating the role of education in the formation of belief and religious activity.