E.

Lauryl Nagode HIST405 Tim Garrison 19 June 2012 The Genesis and Evolution of the First Amendment Establishment and Exercise Clauses A foundational commitment to religious freedom is one of the most noble, compelling, and enduring narratives that define what it means to be an American. The idea that this commitment found expression in the preeminent position given to the establishment and exercise clauses contained in the First Amendment of the Bill of Rights, however, is not supported by the historical record. The protections now afforded to religion were, in fact, both intentionally and expressly denied by the First Amendment. Those same protections continued to be both intentionally and expressly withheld by Congress as a mandate of the electorate majority for the next 150 years. Their provision ultimately occurred only after they were brought within federal jurisdiction of the Supreme Court through the Fourteenth Amendment's due process clause. The way Americans have actually dealt with religion produces a much different, and substantially less admirable narrative of national identity one in which the beliefs, practices, and values of its historically Protestant Christian majority not only informed the very foundation of its government, but were, and are still being expressed in those laws challenged under the First Amendment that have always tacitly privileged that religion. The influence of that majority can be found in the very genesis of the

establishment and exercise clauses themselves. Nearly all thirteen colonies operated with an officially established religion that was directly supported by government revenue, and in some cases enforced by compulsory attendance law.1 Although most, especially the Church of England, were officially disestablished following the Declaration of Independence,2 nine of the thirteen states created by that document made explicit mention of Christianity and its teachings in their founding constitutions, two of which operated under explicitly pro-Christian charters well into the nineteenth century.3 Religion was widely assumed to be necessary to a civil society, and the state therefore required to actively patronize and promote it.4 At the national level, the Northwest Ordinance, enacted by the Continental Congress in 1787, made the unqualified assertion that religion, morality, and knowledge [are] necessary to good government,5 while the very proceedings through which the Constitution itself was drafted later that same year were liberally sprinkled with the mention of God, Jesus Christ, the Christian religion, and many other religious references.6 That the Constitution makes but a single reference to religion reflects the understanding shared by the founding fathers that the government whose operation it defined should have no interest in, and be given no power

1 Melvin I. Urofsky, The Religion Clauses, Organization of American Historians Magazine of History, Vol. 5, No. 1 (1990): 20. 2 Ibid., 21. 3 Naomi Cohen, Jews in Christian America: The Pursuit of Religious Equality (Oxford: Oxford University Press, 1992), 3. 4 Thomas Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 203. 5 Ibid., 215. 6 Ibid., 217.

to address itself to that particular issue.7 Each state had already articulated its relationship to religion, and actively incorporated that relationship in its governing institutions. The failure of the Constitution to make explicit its intent that states retain control over those relationships lent weight to accusations that the document as a whole left the issue of that control subject to the kind of questioning and debate that could lead to its eventual, if not immediate and complete, assumption by the federal government it proposed to create. To invalidate this argument, and obtain the final five state votes needed for ratification, promises were made to amend the Constitution to include a Bill of Rights that would address those concerns despite the belief of its Federalist authors that the guarantees this amendment would provide were already embodied in, and firmly secured by the Constitution itself.8 That such a bill was considered so unnecessary made its introduction by James Madison in 1789, during the first session of the newly-formed Congress, as unpopular as it was divisive.9 More time was spent by delegates arguing its necessity than its contents.10 While some concern was expressed over the potential use of the general welfare clause to broadly restrict religious liberty,11 commentary specific to the First Amendment establishment and exercise clauses tended to be vague in detail, short in

7 Ibid., 194. 8 Curry, The First Freedoms, 193-194. 9 Ibid., 194. 10 Ibid., 199. 11 Ibid., 194.

length, and focused largely on issues of rhetorical preference.12 The first draft of those clauses contained elements culled from four of the seven proposals submitted on the issue by the states themselves: one from New Hampshire asserting that no laws be made touching or infringing on rights of conscience; one from Virginia asserting the right to free exercise according to dictates of conscience, with the law giving no favor or preference to one religious sect over another; one from New York asserting the right to free and peaceable exercise again according to the dictates of conscience, with the law giving no favor or preference to one religious sect over another; and one from North Carolina asserting that, on the basis of religious belief, the obligation to bear arms could be met by paying another to perform that service instead.13 Madison distilled these to read: [5] The civil rights of none shall be abridged on account of religious beliefs or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or any pretext infringed.14 Submitted in June 1789, the House, busy with the more critical task of organizing the new government, delayed consideration of Madison's proposal for over a month and a half. Over the course of the next three months, it went through twenty revisions: four tendered by the states, ten debated in the House, five debated in the Senate, and the final revision drafted by joint committee. No dispositive argument against any of the nineteen interim

12 Ibid., 194, 196, and 213-214. 13 John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (Boulder: Westview Press, 2000): 64. 14 Ibid., 65.

drafts is contained in the Congressional record, nor does that record provide any substantive insight into why the sixteen words that comprise the final draft were ultimately deemed more agreeable than their predecessors. 15 The choice of those particular words, however, can be read as reflecting the general purpose the clauses were intended to serve. The specification of Congress in the first line reflects an implicit understanding that they were not to be held binding on the states themselves. Interpreting the future active imperative shall not make as a command, rather than as anticipatory, reflects the further understanding that they were not be used by Congress to revoke or repeal existing state laws that touched on issues specifically respecting the establishment of religion, or prohibiting the free exercise thereof.16 Further, and perhaps most significantly with regard to subsequent attempts made by the Supreme Court to arrive at a deeper understanding of their intent, the House debates about combining protection of religion with that of speech, press, and assembly make it clear that delegates fundamentally perceived the exercise of religion as taking place both in, and outside of those areas in acts of conscience, for example, that prohibited one from bearing arms as expressly articulated in proposal New Hampshire submitted for consideration prior to the drafting of this document.17 Taken as a whole, the clauses must be seen more as a compromise embodying the consensus of the delegation about the outermost boundaries
15 Ibid., 65-72. 16 Ibid., 74-77. 17 Witte, Religion and the American Constitutional Experiment , 80-82.

to which government action with respect to religion must be held,18 rather than the triumph of one particular party or specific viewpoint over a clear or entrenched position.19 They defined only what could not be established or prohibited. They left open for debate and development what conduct, short of outright establishment or prohibition, was permissible. They applied only to federal conduct. Those who drafted them expressly urged that their intent be derived by looking at the text and sense attached to it by the people in their respective state conventions.
20

That intent, according to John Witte, Jr., professor of law and director at Emory University, is found in the tensions that existed between diverse views and the general principles that emerged from their interaction.21 The views in question were Puritan, Evangelical, Enlightenment, and Republican. The principles that emerged from the interaction of those views were reducible to what the founders called [the] 'essential rights and liberties' of religion that consisted of liberty of conscience, freedom of exercise, pluralism, equality, separation of church and state, and disestablishment. The choice to protect those right and liberties constituted a major departure from the inherited tradition of religious establishment and prescription. The choice to cast those rights and liberties in broad terms and apply them on their face to all persons was historically unprecedented. The denominationally-specific freedom of exercise this choice was initially

18 Ibid., 73. 19 Curry, The First Freedoms, 193. 20 Witte, Religion and the American Constitutional Experiment ., 23 and 73. 21 Ibid., 24-25.

intended to provide could be, and later was extended to other religious groups. The establishment it allowed principally in the form of collecting tithes for preferred religious institutions and religious oaths of public office were, as John Adams noted at the time, mild and equitable, and expressly prohibitive of active suppression and persecution on the basis of established preference.22 It may have been, as Witte asserts by describing it in these terms, a remarkably advanced experiment in government that affected an essentially public religion derivative and supportive of the plurality of private religions from which that government received its authority, and over which it democratically ruled.23 But it was also an experiment that unquestionably understood religion to mean Christianity, if not Protestant Christianity,24 and one that left the task of working out the consequences of maintaining the principle that government lacked the competence to rule on religious matters in a society whose customs, mores, laws, and traditions were predominantly Protestant.25 In defending the Constitution as written, Madison had admonished critics demanding its amendment to include a Bill of Rights, that the real danger to religious liberties lay in the hands of the majorities.26 While the

22 Witte, Religion and the American Constitutional Experiment , 37-38. 23 Ibid. 24 Ibid. - According to the Congressional record, the question of where to set the line at Protestant Christianity, Christianity, or simple theism is the only serious debate in which Congress engaged with regard to the defining what they meant by the term religion (Witte, Religion and the American Constitutional Experiment , 83). 25 Curry, The First Freedoms, 221. 26 Ibid., 205.

1789 passage of that bill and its subsequent ratification by the states in 1791, prevented the federal government from instituting laws that directly privileged that majority, state governments continued to operate primarily on the basis of their support and therefore directly in their service. None of the 48 state constitutions in effect prior to 1947 held to the federal standards established by the First Amendment. All were rife with clauses designed to provide a minimal level of religious freedom for all, while promoting patronage to one favored religion always Christian, if not specifically Protestant Christian and institutionalizing the beliefs, values, traditions and practices of that religion as a matter of privilege.27 42 had a general clause protecting liberty or right of conscience, but only 25 included an explicit a free exercise clause. 17 set limits that excluded protection for actions deemed licentious by, or as violating the perceived peace, safety, order, and security of the majority two added morals to this list, and four added the provision that the exercise of one religion could not violate the natural or civil rights of others.28 The political, economic, social, and cultural tensions these laws produced were made manageable for a long time largely through the ability of the disenfranchised to relocate to other jurisdictions. Some went willingly. Some to escape prejudice and discrimination. Some to avoid censure, fines, and/or imprisonment. Others went under threat of removal, while still others were forcibly removed by the states themselves. Mormons took a circuitous

27 Witte, Religion and the American Constitutional Experiment , 90-96. 28 Ibid., 89-90.

route from New York to Ohio, Missouri, and Illinois before settling finally in the wide open spaces of Utah. Catholics congregated in California, North Dakota, South Dakota, Illinois, Louisiana, Missouri, Nevada, and New Mexico. Baptists and Methodists made the southern states, from Georgia in the east to Mississippi in the west, their home. The Christian revival that occurred during the first half of the 19th century with the Second Great Awakening added a host of newly-minted faiths to the mix, and brought about the reconquest of the eastern seaboard states by evangelical Baptists and Methodists, as well as Roman Catholics. European and Mexican waves of immigration in the 1840's increased the concentration of the country's Protestant, as well as Catholic population. The Civil War permanently divided the Protestant Christian majority into distinct northern and southern branches of Lutheran, Presbyterian, and other denominations. Abolition liberated and disseminated African beliefs, including those acculturated by Christianity, across much of the country. The influx of immigrants from eastern Europe and Russia after 1880 introduced new forms of Judaism, Catholicism, and Orthodox Christianity to those communities of similar faith already here, while emigration at the same time from across the Pacific established new communities devoted to Buddhism, Confucianism, Hinduism, and other eastern religions throughout the western states.29 Despite the relatively few accommodations for religious freedom made at the state level by the Protestant Christianity majority for this increasingly

29 Witte, Religion and the American Constitutional Experiment , 98-99.

pluralistic segment of the American population, few appeals were received at the federal level during this period seeking protection of that freedom through the provisions of the First Amendment.30 Between 1879, when the first appeal for protection under the religion clauses was made, until the 1940, when the appeal was made that established those clauses as warranting due process under the Fourteenth Amendment, only 35 appellants sought protection of their religious freedom from the Supreme Court.31 That the Court could only entertain challenges to federal law certainly contributed to the paucity of the cases they heard, but that does not explain the equally low number of applications made for a hearing on the issue during this time. Leo Pfeffer, legal scholar and associate general counsel for the American Jewish Congress, suggests that this low number is due to the character of the Protestant Christian majority itself: their existence as a multiplicity of sects rather than a single dominant sect intent on exploiting the coercive arm of government to protect and promotes its tenets, and preserve its dominant status; their loyalty to formalized religion being less personally significant than their desire to avoid adopting measures that could be used to compel conformation with the belief and practices of a single dominant sect; the increasing sense of nationalism they had, as well as climate of massive industrial change in which they worked, that simply wasn't conducive to the espousal of dogma with the intensity needed to

30 Leo Pfeffer, The Supreme Court as Protector of Civil Rights: Freedom of Religion, Annals of the American Academy of Political and Social Science , 275 (1951): 75. 31 Roger Stahl, Carving Up Free Exercise: Dissociation and 'Religion' in Supreme Court Jurisprudence, Rhetoric & Public Affairs, Vol. 5, No. 3 (2002) 447.

coercively impose that dogma on others.32 While Pfeffer's observations may have objective value, they also reflect what others see as the insidious way in which the Protest Christian majority viewpoint has been appropriated in the way Americans perceive the historical relationship between religion and government as a whole. The beliefs, values, tenets and practices distinct to that religion found their way into a variety of laws like those establishing Sunday as an official day of rest on which neither public nor private business could be transacted, as well as those that mandated both bible study and prayer as a required part of public school curriculum. The subscription to Christian oaths was still requisite to holding public office in most states, and even where their constitutions explicitly provided protections for freedom of conscience, many still regularly passed legislation that made it difficult, if not impossible, for the increasing number of their non-Christian constituents to legally adhere to the tenets of their religious faith.33 Christian associations whose sole purpose was to proselytize to Jews were incorporated by a number of state governments.34 The National Association to Secure the Religious Amendment to the Constitution was formed in 1860, and, under the leadership of William Strong, lobbied for amending the Preamble to the Constitution to read: We, the people of the United States, humbly acknowledge Almighty God as the source of all authority and power in civil government, the Lord Jesus Christ as the Ruler among the nations, his revealed will as the supreme law of the
32 Pfeffer, The Supreme Court as Protector of Civil Rights, 76. 33 Cohen, Jews in Christian America, 40-42. 34 Ibid., 39.

land, in order to constitute a Christian government .35 Strong was appointed to the Supreme Court bench in 1870 on the basis of those views, and, in 1905, another Supreme Court Justice, David Brewer, gave a series of lectures on why America was and would remain a Christian nation.36 For many during this period, freedom of religion clearly did not necessarily mean freedom from it,37 or its flagrant public identification and promotion of itself in almost exclusively Protestant Christian terms even at the judicial level. Protection of religious freedom was generally assumed to mean protection of that religion. Protections were afforded to others only as a matter of shared interest or when doing so would not pose an inconvenience to, or imposition upon the interests of the majority and many were unabashedly characterized by the court as a benediction of the Christian mercy and love upon which the principles of American jurisprudence were founded.38 The extent to which this attitude pervaded the judiciary is evident in the argument made by the Supreme Court to support its decision in the very first challenge to federal law it heard on the basis of the exercise clause: Reynolds v. United States (1879). The decision of Court in this case found precedent in what Chief Justice Morrison Waite opined as being the express intent of the founding fathers that Congress be deprived of all legislative power over mere opinion, but ... left free to reach actions which were in
35 36 37 38 Cohen, Jews in Christian America, 66 (quoting the sponsors of this particular movement). Ibid., 93-94. Ibid., 28. Ibid., 61-62 (paraphrasing City Council of Charleston v. S. A. Benjamin, (1846), Charleston, SC, Vol. IV, No. 12, Adar 5607, March 1947).

violation of social duties or subversive of good order.39 This intent is not, in fact, supported by either the record of debate over the drafting the Constitution and Bill of Rights, or any of the language these documents contain.40 Regardless, having made that assertion and establishing that the religious practice of polygamy constituted just such an act of subversion, the Court's decision to uphold the federal law that prohibited it seems relatively straight-forward, and, while of obviously questionable accuracy regarding the intent of the founding fathers, certainly without any undue religious prejudice or privilege. The dissociation of belief from practice, however, is a fundamental tenet of Protestant Christian religious ideology. It is one founded in the Pauline tradition that associates the sacred with pure thought, and action with the corruption of the flesh. One in which salvation is derivative of faith, not works. One in which practice is both expressly and explicitly devalued. One, in other words, many Christian faiths from Catholics to Jehovah's Witnesses not only don't recognize, but actually consider inherently apostate. One that renders the redemption narratives embraced by other traditions including Judaism, Islam, and Buddhism with no real meaning at all.41 While the decision of the Court to adopt this argument may have been based on the practical need to reckon a marginal practice with the

39 Morrison Waite, Reynolds v. United States, 98 U.S. 145 (1878). 40 Curry, The First Freedoms, 217. 41 Roger Stahl, Carving Up Free Exercise: Dissociation and 'Religion' in Supreme Court Jurisprudence, Rhetoric & Public Affairs, Vol. 5, No. 3 (2002): 446-447.

overwhelming inertia of mainstream Protestant institutions,42 it nonetheless established a precedent that continues to be invoked to this day by both the judiciary and legislature whenever the issue of religious exercise is raised. By doing so, the Court has tacitly but repeatedly validated the authority of this tenet to determine the essential meaning of the religious experience. This has served, over time, to define as normative one of the most ideologically distinct and controversial ways of understanding that experience in comparison to the totality of world religious views. Of more critical concern, is the effect both have had on surreptitiously reinforcing the perceived right of Protestant Christianity majority who experience religion in this way to determine the propriety of all values, traditions, behaviors, conduct, practices, and laws adopted relevant to that experience.43 Taken in that context, the relatively late inclusion of establishment and exercise under the due process clause of the Fourteenth Amendment in 1940, and the seemingly circuitous route the judiciary took to substantiate their inclusion, come as less of a surprise than they might at first appear. In 1803, Marbury v. Madison established that the provision made under Article III extended judicial power to all cases of law and equity arising under the Constitution.44 Three cases heard over the course of the next 18 years established the Court's power to review and overturn state laws that violated any provisions of the Constitution.45 That power was extended following the
42 Ibid., 447. 43 Stephen Feldman, Principle, History, and Power: The Limits of the First Amendment Religion Clauses, Iowa Law Review, 81 (1996): 850-861. 44 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). 45 Witte, Religion and the American Constitutional Experiment , 101.

Civil War through the Fourteenth Amendment to ensure that the laws of no state could deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.46 Originally intended to guarantee equal treatment of the black male slave population newly-freed to become actual citizens of the southern states, in 1897 the Court began interpreting the language contained in this clause to incrementally (as well as somewhat ironically) include all of the liberties the states had insisted the Federalists amend to the Constitution through the Bill of Rights specifically to prevent it from ever being able to take this kind of action.47 State and local laws touching on religion were initially reviewed by the court on the general principles of law and fairness contained in the Constitution.48 A series of cases heard by the Court on that basis between 1815 and 1914 were instrumental to developing the legal principles of exercise, pluralism, equality, separation, and the more sophisticated analysis of religious rights and liberties that would become critical to later application of First Amendment establishment and exercise protections. Cases heard between 1923 and 1934 helped define religious liberty as fundamental enough to be protected against both federal and state action, and laid the judicial foundation for incorporating the religion clauses into into the due process clause of the 14th Amendment and thereby applying to the
46 Fourteenth Amendment to the United States Constitution, Section I. 47 Terry Eastland, ed., Religious Liberty in the Supreme Court: The Cases That Define the Debate Over Church and State. )Washington, D.C.: Ethics and Public Policy Center, 1993): 1. 48 Witte, Religion and the American Constitutional Experiment , 102.

states.49 In Meyer v. Nebraska, for example, the Court, in ruling that state prohibitions on foreign language instruction were an infringement on the constitutionally guaranteed liberty to acquire useful knowledge, included in its list of other such liberties the right to worship God according to the dictates of his own conscience.50 In hearing Pierce v. Society of Sisters on a claim of deprivation of property, the Court established in its opinion that it was unconstitutional for a state law to unreasonably interfere with the liberty of of parents and guardians to direct the upbringing and education of their children simply because that education was parochial rather than private.51 And, while the Court found the request made by the appellants for protection under the exercise clause constitutionally supportable in Hamilton v. Regents of University of California, Justice Pierce Butler in rendering that opinion also wrote: There need be no attempt to enumerate or comprehensively to define what is included in the 'liberty' protected by the due process clause undoubtedly it does include the right to entertain the beliefs, to adhere to the principles, and to teach the doctrine on which these students base their objection to the order prescribing military training.52 Where, in 1845, the Court flatly rejected the claim that the exercise clause applied to state law,53 cases like these laid the judicial groundwork necessary reverse that position under the due process clause of the 14th
49 50 51 52 53 Witte, Religion and the American Constitutional Experiment , 102. Meyer v. Nebraska, 262 U.S. 390 (1923). Pierce v. Society of Sisters, 268 U.S. 510 (1925). Hamilton v. Regents of the University of California, 293 U.S. 245 (1934). Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 589 (1845).

Amendment. In 1940, Cantwell v. Connecticut became the first case to be reviewed by the Court on that basis, and one of the few in the history of decisions involving exercise in which the justices unanimously voted to overturn the state law in question.54 Justice Owen J. Roberts opined on behalf of his fellow justices that the Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact laws respecting the establishment of religion, and the free exercise thereof. 55 Seven years later, the Court heard its first case on establishment, Everson v. Board of Education, in which the second sentence of Justice Hugo Black's majority opinion began with the phrase, The First Amendment, as made applicable by the Fourteenth.56 Even dissenting jurists in the case felt it necessary to comment on that applicability: Justice Robert Jackson noted that states cannot, through school policy any more than through other means, invade the rights secured to the citizens by the Constitution one of [which] is to be free of taxation to support a transgression of the constitutional command that authorities shall make no law respecting the establishment of religion, while Wiley Rutledge, Felix Frankfurter, Robert Jackson, and Harold Brown asserted neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth.57

54 55 56 57

Eastland, ed., Religious Liberty in the Supreme Court, 17. Cantwell v. Connecticut, 310 U.S. 296 (1940). Everson v. Board of Education, 330 U.S. 1 (1947) Eastland, ed., Religious Liberty in the Supreme Court, 67 and 71.

Despite these advances, the distinctly clear perspective of the Protestant Christian majority continued, and still continues to pervade the decisions of both the judiciary and legislature. National and state laws, motivated by the interests of that majority, have consistently worked to promote, as secular, a variety of traditions essentially derivative of Christian religion that adversely effect the ability of non-Christian exercise.58 While Cantwell did broaden the scope of religious freedom, as Urofsky notes, it did so with the explicit proviso that restraints and prohibitions could be imposed on any religious activity deemed to pose a clear and present danger to the public welfare by a government that receives it power from, and generally works to advance the discrete interests of the democratic majority that, in this country, has historically been Protestant Christian in constitution. 59 In Everson, Justice William O. Douglas, joining Black in the majority opinion, wrote that the First Amendment does not say that in every aspect and all respects there shall be a separation of church and state, going on to assert in his summary that we are religious people whose institutions presuppose a Supreme Being.60 Despite repeated claims of its adherence to the definition of establishment first formulated in that case that borrowed from Jefferson to erect an impenetrable wall between church and state, the Court has consistently refused to apply or even invoke that definition without qualifications the exception being McCollum v. Board of Education in 1948 which the Court abandoned as untenable just four years later in Zorach v.
58 James H. Landman, Putting Beliefs on Trial, Social Education, 68.4. (2004): 278 59 Urofsky, The Religion Clauses, 150. 60 Ibid., 21 (quoting from the court record).

Clausen a failure political science professor William A. Carroll attributes to the Court's fundamental inability to conceive of neutrality as extending to all forms of religious belief, including non-belief.61 The very nature of the appeals for protection under the religion clauses reveals the extent which the Protestant Christian majority is privileged under the law. Of the 418 such cases heard by the Court between 1946 and 1980, only 32, or less than 8%, were brought by, or on behalf of mainline Protestant Christianity at a time when the overwhelming majority of Americans identified themselves as adherents of that faith. Significantly, the kinds of laws from which protection was sought by this majority more often involved zoning, tax law, regulation of religious schools, and challenges to judicial authority compared to those of greater consequential dimension being sought by non-majority appellants in areas of prisoner rights, leafleting, proselytizing, soliciting, employment, public school education, family law, medical care, and aberrant practices. A comprehensive analysis of all the data gathered in this particular study clearly demonstrates that litigants from marginal religious faiths are more likely to experience conflict with secular laws than members of the Roman Catholic faith, or members of mainline Protestant churches, and consequently [are more likely to] become involved in free exercise litigation.62 The real story of America's relationship with religion is neither noble

61 Carroll, The Constitution, The Supreme Court, and Religion, The American Political Science Review, Vol. 61, No. 3 (1967): 657-658, and 663. 62 Frank Way and Barbara J. Burt, Religious Marginality and the Free Exercise Clause, The American Political Science Review, Vol. 77, No. 3 (1983): 656-659.

nor particularly compelling. It is the story of a dominant culture that has so consistently and completely controlled the understanding of social events and reality that its understanding [has become] the normal, the neutral, and the natural - one whose contingent assumptions and interpretations [have] become so neatly woven into the social fabric that they are no longer understood as cultural or even recognized anymore as the manifestations of power they actually are.63 In a country of such enormous religious pluralism, the consequences of blindly continuing to recast that pluralism in terms distinct to the experiential norms of a single faith, regardless of its majority membership or cultural significance, can be devastating. The insistence of Jehovah's Witnesses to knock on doors, Jews to establish an eruv, Muslims to face Mecca and pray five times a day as well as events like Jonestown, Waco, and 9/11 can only truly be understood by looking for definitions of religion that accommodate belief being essentially inseparable from practice ones, perhaps, less so inherently divisive as those that have come to so substantively inform the very way Americans look at, as well as legislate religion as a whole.

63 Feldman, Principle, History, and Power, 853-854.

Works Cited Carroll, William A. The Constitution, The Supreme Court, and Religion. The American Political Science Review, Vol. 61, No. 3 (1967): 657-674. Cohen, Naomi. Jews in Christian America: The Pursuit of Religious Equality. Oxford: Oxford University Press, 1992. Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First Amendment. New York: Oxford University Press, 1986. Eastland, Terry, ed. Religious Liberty in the Supreme Court: The Cases That Define the Debate Over Church and State. Washington, D.C.: Ethics and Public Policy Center, 1993. Feldman, Stephen. Principle, History, and Power: The Limits of the First Amendment Religion Clauses. Iowa Law Review, 81 (1996): 833-882. Flowers, Ronald B. Freedom of Religion versus Civil Authority in Matters of Health. Annals of the American Academy of Political and Social Science, 446 (1979): 149-161. Hartman, Paul. Freedom of Religion and Speech and the United States Supreme Court. The Modern Law Review, Vol. 17, No. 3 (1954): 220228. Landman, James H. Putting Beliefs on Trial. Social Education, 68.4. (2004): 275-281. Pfeffer, Leo. The Supreme Court as Protector of Civil Rights: Freedom of Religion. Annals of the American Academy of Political and Social Science, 275 (1951): 75-85. Stahl, Roger. Carving Up Free Exercise: Dissociation and 'Religion' in Supreme Court Jurisprudence. Rhetoric & Public Affairs, Vol. 5, No. 3 (2002) 439-458. Urofsky, Melvin I. The Religion Clauses. Organization of American Historians Magazine of History, Vol. 5, No. 1 (1990): 20-24. Way, Frank and Barbara J. Burt. Religious Marginality and the Free Exercise Clause. The American Political Science Review, Vol. 77, No. 3 (1983): 652-665.

Witte, John, Jr. Religion and the American Constitutional Experiment: Essential Rights and Liberties. Boulder: Westview Press, 2000.