In commemoration of Constitution Day, the Law Library of Congress hosted a public program on Wednesday, September 16, that examined the right of religious freedom, which is protected by the First Amendment of the United States Constitution. The program featured Robert P. George, McCormick Professor of Jurisprudence at Princeton University, and Jess Bravin, Supreme Court Justice Correspondent of the Wall Street Journal. Bravin led Professor George through an insightful and scintillating discussion about the origin and development of the religion clauses–the Free Exercise and Establishment Clauses, the related Oaths Clause, and judicial cases that highlighted the political and legal complexity of religious freedom claims.
Bravin began by discussing the Mayflower Compact and the Declaration of Independence—the founding documents that preceded the United States Constitution. He highlighted that “these documents invoke the Creator, yet when we turn to the United States Constitution, apart from religious rights and the Oaths Clause, the United States Constitution becomes godless,” he said. “What does that tell us about the nature of our country and the relationship that these documents have with respect to religious exercise in the United States?,” he asked Professor George.
Professor George explained it is true that we certainly see the Founding Fathers invoking the Creator in language from the Declaration of Independence that we do not see in the United States Constitution, but it does not mean that they opposed religion. “The historical record makes it clear that the Constitution was not designed to establish a strong dogmatic separation of church and state such as what you find under the French laïcité system,” he said, referring to French laws that separate church and state, including the prohibition of religious clothing in public schools. It was not designed to “establish secularism as the established religion of the United States or replace secularism in the role that religion would play in a theocratic or quasi-theocratic regime,” he added.
Professor George said we have to remember that the United States Constitution was “a charter of government that had a very particular purpose—to establish and empower, yet limit the power, of a set of institutions at the central level of government, unite separate colonies, regulate commerce and enable the United States to take its place among nations of the world.” Everything else, Professor George stated, was left “to the states and the people respectively.” Moreover, the Constitution did not give the United States Congress the power to establish a national church akin to the national church in Great Britain, promote one religion over another, or tax or interfere with state established religions, which existed until the 1830s, he noted.
Bravin and George also explored the role of religion in public life. Professor George said that America, as a democratic nation, has not relegated religious practice into the private sphere, but rather has allowed religious teachings and practices to have a place in public life. As examples, he noted that Martin Luther King Jr. brought his religiously inspired views into his arguments against racial injustice during the Civil Rights Movement, and that the nation accepts that people can wear religious clothing and jewelry because under the Constitution they are guaranteed the right to express their religious beliefs.
Bravin also discussed two Supreme Court cases with Professor George —Van Orden v. Perry, 545 U.S. 677 (2005) and McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), two cases that both called into question whether or not a display of the Ten Commandments was constitutional, but yet had two different outcomes. In Van Orden v. Perry, the Court ruled that the display on the grounds of the Texas State Capitol was constitutional, but in McCreary County v. ACLU, the Court ruled that the display on the courthouse of Kentucky was unconstitutional. The different rulings stemmed from the fact that in the former case, the Court saw the display as having historical significance, whereas in the latter case the display was viewed as solely making a religious statement.
Professor George said he supports the display of the Ten Commandments in public spaces because he views the commandments as ethical teachings or “ethical monotheism.” That is, God created human beings, loves them and wills them to do good–a view shared by many faiths, including Christians, Muslims and Jews, and does not necessarily endorse one religious teaching. Ethical teachings, he continued, are woven into our political constitutional traditions as we see in the line from the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness.” Fundamental rights protect people of all faiths including the non-believer because it is a commitment our nation has made under constitutional law, he said. He also stated that he did not believe we can detach the historical from the religious significance of the Ten Commandments.
Furthermore, Bravin and George discussed the Oaths Clause, which Professor George explained predates the First Amendment, but argued is the most important clause because it enabled us to become a religiously diverse country by not requiring religious tests to hold public office. Additionally, Professor George made remarks about Supreme Court cases related to the constitutionality of school children reciting the Pledge of Allegiance in public schools. He reminded the audience after a little quizzing that the phrase “under God” was added to the Pledge by Congress in 1954 as a tribute to President Lincoln’s use of the words in delivering the Gettysburg Address.
The discussion made clear that religious liberty has many legal and political complexities. “We have to acknowledge that the lines are blurry,” George said, “but it does not count against our constitutional system because it has worked; we are more religiously diverse than ever before,” which considering our Constitution was signed 228 years ago on September 17, 1787, is a significant statement.
Update: Event video added below.