Supreme Court Decisions: Religious Liberty

Religious liberty in the United States is a fundamental principle of the American constitutional system at both state and federal level. It is a tangible expression in law of the view laid down by Roger Williams,* Puritan “Seeker,” that Christianity, being a life of personal faith, has no need of political support. This was expressed in part by various acts of religious toleration in the English colonies. The disestablishment of the Anglican Church in the State of Virginia (1786) laid the groundwork for the clause in the new Federal Constitution (1789) which forbade a religious test for public office.

Religious liberty is guaranteed by the First Amendment to the Federal Constitution which forbids Congress to legislate “respecting an establishment of religion, or prohibiting the free exercise thereof.” This provision has been extended by the Supreme Court, chief arbiter of constitutional questions, to state governments under the provisions of the Fourteenth Amendment placing definite limitations upon state control of the civil rights of American citizens.

The “free exercise” clause received its first major test in Reynolds v. United States (1879). The court upheld a federal statute outlawing polygamy by denying its practice under constitutional guarantees of religious freedom. The court admitted that it could not pass upon the validity of religious beliefs because of “a wall of separation between Church and State” laid down by the First Amendment. It declared, however, that men’s actions were subject to legal regulation in the interest of public welfare. Later the court upheld the power of Congress to annul the charter of the Mormon* Church for violation of federal law, and denied that Congress was creating “an establishment of religion” by barring the franchise to Mormons practicing polygamy. Subsequent rulings involving religious liberty issues employed the public-welfare principle to justify a grant of federal funds to a nonsectarian hospital corporation, whose services were maintained by a Catholic sisterhood, and the purchase of textbooks by state funds for parochial school pupils.

More recently the “free exercise” clause has been invoked in cases involving Sunday closing laws, religious tests for public office, and the orthodoxy of religious tenets. The court continues to deny jurisdiction in matters of belief. It supports Sunday closing laws on public-welfare grounds, and protects individuals against loss of employment benefits because their religious convictions prohibit work on Sunday or Saturday.

To claim exemption from compulsory military service under the “free exercise” clause was long recognized by the court as legitimate, provided the applicant was a member of a church or sect whose tenets denied the morality of war. In 1970 the court modified this position by accepting “deeply held moral, ethical, or religious beliefs” as a basis for such exemption.

In Cantwell v. Connecticut (1940), the first of the Jehovah’s Witnesses* cases, the First Amendment guarantees of religious liberty were extended to a state government under the restraining clauses of the Fourteenth Amendment. There followed a number of cases involving the right of this sect to propagate its views through the distribution and sale of handbills and religious books, and the right to claim exemption for their children from saluting the flag in the schools. The power of municipal corporations to tax vendors of such literature, the propriety of enforcing child labor laws in regulating the use of children in the distribution of religious propaganda, and objection to the verbal content of recorded messages became related issues.

The court early ruled that a state could require the flag salute as a demonstration of loyalty, but reversed its position in a succeeding opinion. In most instances the court considered the guarantees of the First Amendment, including religious liberty, as occupying a privileged position in American rights. Child labor laws, however, could be enforced, objectionable language was not protected, religious parades could be restricted by police regulations, and vendors could be limited when their presence in public or private premises became a recognizable public nuisance.

The court was unprepared for the controversy which developed over its opinion approving the busing of parochial school students at public expense. Justice Black, speaking for the majority in Everson v. Board of Education (1947), reaffirmed the “wall of separation” doctrine and denied that the use of public money for such purpose was “an establishment of religion.” Rather, it was the use of tax power for the general welfare. Justice Jackson and others found this to be an important step toward breaking down the “wall of separation,” even though the money was paid directly to the parents and not to the school. The court appeared to contradict itself the next year in McCollum v. Board of Education when it outlawed the use of public school facilities for “released time” (time devoted during the school day) religious instruction under church auspices. Such use, said the court, involved an “establishment of religion.” Four years later it approved “released time” instruction when offered in other than school facilities.

Congressional approval of direct financial aid to private and public schools in 1965 alarmed those who feared that the establishment clause had been violated. Parochial aid statutes implementing these grants were adopted in New York, Pennsylvania, and Rhode Island. The first, requiring school boards to provide textbooks to all children at public expense, was approved by the court in 1968. The Pennsylvania statute, granting financial aid to parochial schools for instruction in nonreligious subjects, was invalidated in 1971, as was the Rhode Island attempt to supplement the salaries of parochial school teachers. The court declared that aid thus granted must have a secular legislative purpose, must neither advance or inhibit religion, and must not foster “an excessive government entanglement with religion.” Champions of church and state separation were unhappy with a simultaneous decision approving construction grants to colleges and universities, regardless of their affiliation with religious bodies, under the Higher Education Facilities Act. The court justified its opinion on the ground that there was less danger of religious influence in higher education and that the facilities constructed would be conspicuously neutral.

Whatever controversy was engendered by the financial support issue appears minimal when compared with the public furor over decisions outlawing prayer and Bible reading in the public schools. In Engel v. Vitale (1962) the court held that the voluntary recitation of a prayer composed by representatives of the leading faiths and approved for use in the schools by the state was a step toward “an establishment of religion” and must be disallowed. Similarly, the court found that a Pennsylvania statute requiring the reading of ten Bible verses daily in the schools constituted state support of religion. Three successive efforts were made up to 1974 to secure congressional approval for an amendment to the First Amendment that would permit students to engage in voluntary prayer on school premises. All failed.