Academic journal article Brigham Young University Law Review

The Tension within the Religion Clause of the First Amendment*

Academic journal article Brigham Young University Law Review

The Tension within the Religion Clause of the First Amendment*

Article excerpt

I am honored to be part of this conference, which has been bringing together scholars and public officials from around the globe for almost 20 years to discuss religious freedom. It is hard to imagine a more worthwhile enterprise. I express my gratitude to the organizers and especially to Cole Durham, an indefatigable advocate of religious liberty. I am also pleased to join in honoring Dr. Tahir Mahmood, whose example of erudition, grace, and kindness is an inspiration to all.

Religious freedom is a constant source of a dynamic tension in pluralistic societies as people of goodwill, and sometimes of not-somuch goodwill, struggle to identify the limits of majority rule and individual expression. This tension gives us reason to meet frequendy and share ideas. Because I am a judge on an appeals court of the United States, I will speak from an American perspective. That is not to suggest that this tension is a uniquely American phenomenon. It is not. But it is an important feature of American life, and there is much that can be learned from the American experience.

I begin with a recent story that involves Abraham Lincoln and his most famous speech, the Gettysburg Address. Generations of American schoolchildren have memorized this speech, given at the dedication of a cemetery for those who died at a decisive battle of the American Civil War. For Americans, Lincoln's speech stands alongside the Declaration of Independence as an expression of universal ideals that should inform democratic government. The speech is short; it was delivered in less than five minutes. But Lincoln's words changed the arc of American history - a reminder to speechmakers that to say it longer is seldom to say it better. Although much could be said about this remarkable address, for my purposes, I highlight only its stirring conclusion, in which Lincoln referred expressly to God with these words: "[W]e here highly resolve that these dead shall not have died in vain - that this nation, under God, shall have a new birth of freedom - and that government of the people, by the people, for the people, shall not perish from the earth."1

As an aside, I note that scholars have long debated Lincoln's religiosity. He was not what some would call a "churchgoer," but many believe that he became a deeply spiritual man over the course of his adult life, especially as he confronted the crisis of the Civil War.2 In fact, one scholar writes that Lincoln's move to end slavery was his part of a covenant with God.3

Several months ago, the organizers of a conference that gathered together a prominent group of American lawyers, law professors, and law students distributed pamphlets to those in attendance that contained some of America's charter documents, including the Gettysburg Address. But unlike the version of Lincoln's speech with which Americans are most familiar, the pamphlet left out the words "under God" from the passage I just read to you.4 As you might imagine, this omission has spurred a lively discussion that raises important questions about the role of religion in American public life.5 Questions like:

* To what extent is it proper for political leaders to publicly express their religious beliefs?

* Should religious convictions influence how citizens and politicians vote?

* Should we leave religious views at home when we go to work or school?

* Should government protect the religious expression of a minority that offends the values of the majority? If so, should there be limits to that protection?

Americans disagree about the answers to such questions,6 and the recent tussle over Lincoln's words is, in part, a proxy for the disputes over these fundamental matters.

Significandy, President Obama, who has been public about the role his Christian faith plays in his personal and public life,7 has sided with those who think religion should have an important role in our public discourse. He has argued that:

[S]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square. …

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