Making Sense of Church & State

“We must go elsewhere, therefore, to ascertain its meaning” – Reynolds v. US (1878)

“A feature of the life of Asiatic & African people” – Reynolds v. US (1878)

 "one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will."  Davis v. Beason (1890)

“ the general Principles of Christianity, in which all those Sects were united... Now I will avow, that I then believed, and now believe, that those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God”

No Longer Content Specific  The state cannot “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.  Torasco v. Watkins (1961)

2011 Dana Summer

Competition Rick Perry’s... an evangelical Christian, a follower of Jesus Christ. Mitt Romney’s... not a Christian. Mormonism is not Christianity. It has always been considered a cult by the mainstream of Christianity.” –Robert Jeffress, First Baptist Dallas TX

“ the general Principles of Christianity, in which all those Sects were united” -- John Adams to Thomas Jefferson,1813 The Shape of American Protestantism

The Shape of American Religion  “  “ not primarily confession  “certainly not territorial  “And unlike any previous church in Christendom, it has no official connection with a civil power.” – Sidney Mead, Lively Experiment,

“The Mormon Octopus”

“I Imagine it Must be a Perfect Paradise” Puck (Feb. 13, 1884)

“ Mormonism must first show that it satisfies the American ideas of a church, and a system of religious faith, before it can demand of the nation the protection due to religion. This it cannot do, for it is not a church; it is not religion according to the American idea and the United States constitution.” -- Rev. A.S. Bailey, “Anti-American Influences in Utah” (1888)

“Obedience to law, tolerance of opinion, loyalty to country – these are the principles which make the flag a sacred thing and this Republic immortal.” - Senator Albert J. Beverage (1907) 20 th Century Religious Citizenship In re: Reed Smoot ( )

“Perhaps the most important question to ask a person of faith who seeks a political office, is this: Does he share these American values: the equality of human kind [tolerance], the obligation to serve one another [loyalty], and a steadfast commitment to liberty [obedience to law]?” -- Mitt Romney, “Faith in America” (12/6/07)

“emphatic faiths”

 “Widening gyres”  Application to the States  More Diversity ... & the Liberal State  Organized Advocates

“government in this country... is without power to prescribe... any program of governmentally sponsored religious activity. ” -- ENGEL v. VITALE (1962) Third Disestablishment

“the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” – Employment Div. v Smith (1990) Neutrality

RFRA’s

Total # Year

 While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private.  -- Carl H. Esbeck, 11 First Amendment L.R. 1 (1212)

A Process Disestablishment ~ Liberty

 Public Money  Bible  Prayer  Proselytizing  School Curriculum  Pledge of Allegiance  Zoning  Public Displays  Native American Rites  10 Commandments

The Law as “Case” Law  Balancing of Interests  Hermeneutical  Questions & Answers  Evolutionary

Interpreting  Compelling state interest  Narrowly tailored -- Sherbert v. Verner (1963)

“General Christianity... the cement of civil union, and the essential support of legislation.” -- Peoples v. Ruggles, 8 Johns. 290 (N.Y. 1811)

 “many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith.” Justice Black, Torasco v. Watkins, 1961