Religion Sans Ultimate: A Re-Examination of Church-State Law
Tamm, Rudra, Journal of Church and State
I. WHY RECONSIDER CHURCH-STATE LAW
The opening words of the First Amendment to the U.S. Constitution, preceding even the great freedoms of speech, press, and assembly, grant freedom of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ." The text itself, as well as the legislative history of its drafting and ratification, reveals an attempt at neutrality: Congress shall not establish, yet not prohibit religion.
There is an inevitable and even "intolerable tension"'l between the Establishment and Free Exercise Clauses of the First Amendment, which predictably foments disagreements, but most Americans would likely agree that freedom of religion as embodied in the religion clauses has served the country well.
Largely ignored for 150 years, church-state law has recently become a favorite topic of legal scholars, and would appear to have little relevance beyond academia-were it not for our social pathologies. In a time of unprecedented peace and prosperity, troublesome issues such as race relations, crime, the excessive use of legal and illegal drugs, and the existence of a self-perpetuating underclass remain. Underlying these is the disquieting alienation that Soren Kierkegaard, Franz Kafka, and others describe as permeating industrial societies.
If at least a sizable minority of citizens believes that spiritual aspects, however defined, are a necessary ingredient in solving these societal problems, then church-state issues rise to the forefront and any mistakes in prior analysis must be addressed.
II. CURRENT DEFINITION OF "RELIGION"
THE SUPREME COURT'S DEFINITION
The Constitution does not define "religion" as it is used in the First Amendment. All Supreme Court cases adjudicating the Establishment and Free Exercise Clauses since the landmark case of Everson v. Board of Education2 make the traditional distinction between church and state, or synonymously, between the religious and the secular. The Court has been careful not to pronounce an ironclad definition of "religion," but has worked on a case by case method. The trend has been to broaden the concept, especially in Free Exercise Clause cases, to include more than traditional theistic faiths.3 In conscientious objective cases such as U. S. v. Seeger and Welsh v. United States,5 which are not constitutional cases but involve the interpretation of a statute,6 the Court has reached its broadest definitions of "religion."
There seems to be little dispute that in free exercise cases, and its offshoots, such as the conscientious objector cases, the word "religion" should be given a broad definition so as to protect the beliefs of minorities and those of unorthodox faiths to the widest extent possible. The problem is that an overly broad definition of religion would cause the Establishment Clause to prohibit government from undertaking worthy secular activities because religions also encourage such activities, and undertaking those activities thus may tend to favor, or "establish," religion. A dual definition of religion, broad under the Free Exercise Clause and narrow under the Establishment Clause, has been advanced by perhaps the majority of commentators7 but rejected by the Court, which has adopted a unitary definition since Justice Rutledge wrote in Everson: "'Religion' appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid `an establishment' and another, much broader, for securing `the free exercise thereof.'"
The Supreme Court presently considers religion as that which pertains to "ultimate concerns."9 The phrase "ultimate concerns" was borrowed from theologian Paul Tillich in his Dynamics of Faith and The Courage to Be.lo This article contends that such a definition is incomplete, because while religion may speak to ultimate …
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Publication information: Article title: Religion Sans Ultimate: A Re-Examination of Church-State Law. Contributors: Tamm, Rudra - Author. Journal title: Journal of Church and State. Volume: 41. Issue: 2 Publication date: Spring 1999. Page number: 253+. © 1999 J.M. Dawson Studies in Church and State. Provided by ProQuest LLC. All Rights Reserved.
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