Law, the U.S. Supreme Court, and Religion

Abstract

The United States Supreme Court’s religion jurisprudence is typically analyzed based on whether a court’s decision emerges from an Establishment Clause analysis or a Free Exercise Clause analysis. While this method is useful, a more in-depth analysis can be undertaken by identifying various philosophical themes that describe the court’s varied approaches to deciding religion cases. The cases can be analyzed under at least four separate but interrelated themes: separation of church and state, cooperation between sacred and secular activities in religion-based contexts, equal treatment among religions, and the integration of religion and politics. This article examines the High Court’s often controversial decisions affecting religion through the lenses of these four themes. The term “separation of church and state” is frequently used to describe the American relationship between law and religion, but this term is far too simplistic a description of how church and state interact in the American system; the ways in which the system sometimes embraces separation but sometimes does not, are analyzed and explained. Consistent with the misconception that the Supreme Court always seeks to “separate” church and state, court analysts will sometimes describe the court’s strategy as giving “no aid” to religion. This also is a simplistic analysis, since it can clearly be shown that the court does not seek to “wall” off religion from government aid in all cases. Rather, the court tends to sanction state support of “secular” activities that arise in religion contexts while denying state aid to the “sacred” components of religious activity. “Equality” is a hallmark of American democracy. While the Founders did not earmark equality as a goal of the religion clauses, the concept has nevertheless emerged as a byproduct of deeper goals, namely sanctioning religious pluralism and providing equal access to government office. If separation of church and state were really the centerpiece of how religion and state activity interact in the United States, the Supreme Court would not sanction the involvement of religion in public debate and discourse, nor would it permit political candidates and officeholders to freely talk about religion in their personal lives and its role in American political life. But the court carefully crafts a jurisprudence that rarely intrudes on this kind of activity. In sum, looking at Supreme Court religion cases through a number of philosophical lenses is a fruitful guide to understanding court decisions that are otherwise often highly complex and confusing.