Examining religion and the Constitution

"Spirit of the Law" book jacket

The opening words of the First Amendment —“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”—have long protected the public from federal religious infringement, but it wasn’t until the 1940s that the protection was applied to the states.

Sarah Barringer Gordon, the Arlin M. Adams Professor of Constitutional Law in Penn’s Law School and a history professor in the School of Arts and Sciences, says that while the religious clauses ratified with the Bill of Rights in 1791 were always popular with the American people, prior to the 1930s, the clauses didn’t affect everyday life.

It was in the ’30s, she says, that legal questions regarding the practices of religions such as Jehovah’s Witnesses and public tolerance for dissenting political and religious views began to emerge. The Supreme Court took up the issues in the 1940s, which started a rush to court among religious believers and a emerging “jurisprudence of religion among judges” who were forced to deal with these questions for the first time.

Her new book, “The Spirit of the Law: Religious Voices and the Constitution in Modern America,” investigates the “new constitutional world” that formed after the Constitution became the centerpiece of the religion v. law debates, beginning in 1940 and continuing through today.
“[The Court] created these new possibilities but neither they nor anyone else anticipated how much would happen, how many different people would come to court and what would happen to them when they got there,” she says.

Gordon says a number of factors led to the creation of this “new constitutional world,” including the growth of the federal government in the 1930s, a more tolerant American society that encouraged interfaith dialogue and respect and World War II.

“When in the late 1930s, Jehovah’s Witnesses began to be beat up for failing to salute the flag, a number of people were deeply concerned,” she says. When Nazi dissenters were jailed and thrown in concentration camps for refusing to “Heil Hitler,” many Americans began to wonder if the dissenters would fair differently in the States.

“Those really converged in the early 1940s and prompted the Supreme Court to protect Jehovah’s Witnesses in ways that no litigants really had been protected before,” Gordon says. The Court then used Jehovah’s Witnesses as the example of how to treat religious dissenters and smaller religious groups.

To research her book, Gordon tried to find areas of law and religion that had been overlooked by previous scholars who were focusing only on a lawyer’s perspective, or a religious perspective.

She read extensively in archives and studied legal cases to try to decipher patterns of religious claims made by those who were pushing the boundaries of religion and law, such as Jehovah’s Witnesses, progressive Jewish movements, evangelical Protestant women and the Nation of Islam.

Despite repeated attempts, Gordon says no one has ever successfully produced a clear line separating government and religion.

Opponents of religion in public life often use the phrase “separation of church and state.” Although those exact words are not in the Constitution, Gordon says courts and commentators have adopted the phrase to mean that government must be separated from religion in order to protect it from religious influence and to protect religious life from government control.
However, she says, proponents of religion in public life fear that vulnerable religious groups could be victimized if the government is not forced to account for religion.

“I actually think that most people, when they really think about it, want religion and government to be distinct,” Gordon says. “But the phrase ‘separation of church and state’ has become so controversial that it’s probably not helpful.”

Many of the issues that arose from the early religion v. law arguments, including school prayer, government funding of religion, religion in prison and the debate over the phrase “Under God” in the Pledge of Allegiance, have yet to be resolved. Gordon says they are not likely to disappear.

“What often happens is that the laws of God are not the same as the laws of man,” she says. “Usually, to this day, it’s the laws of man that win out. But people are torn apart by this.”

Originally published on April 8, 2010