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Published online by Cambridge University Press: 24 April 2015
Religion in public life is a significant issue at this moment in our history for at least three reasons. First, we are celebrating the bicentennial of our Constitution, with its commitment to removing religious tests for federal public offices, and we are looking forward to the bicentennial of the Bill of Rights, which enshrines religious freedom at the head of the liberties secured in the First Amendment. Second, we are the beneficiaries of a rich literature written in the past decade exploring the phenomenon of religion in American politics. Third, 1988 was a presidential election year in which two of the candidates seeking the nominations of their respective parties have served as ministers, and in which many of the other candidates have had occasion to explore in public debate the ramifications of their deeply held beliefs for a wide range of public policy choices, both foreign and domestic.
Several other reasons could be offered in support of the view that the role of religion in public life is worthy of full and rigorous exploration in this election year. Nevertheless, this theme is likely to remain an iceberg issue submerged from public view yet moving along inexorably. More's the pity. For, as the Williamsburg Charter Survey demonstrates, beneath the tip of the iceberg is widespread misinformation and confusion about religion and public policy. For example, the survey discloses that only one-third of the respondents were even aware that religious freedom is secured in the First Amendment, although 71% were aware that this freedom is protected somewhere in the Federal Constitution. When asked what pops into their mind when they hear the words “the first amendment to the U.S. Constitution,” only 4% think of religious freedom.
An earlier version of this article appeared in This World, No. 22 (Summer 1988) and is reprinted with the permission of the author and the publisher.
1. US Const, Art VI, Cl 3 provides: “no religious test shall ever be required as a qualification to any office or public trust under the United States.” In 1791 the constitution was amended to provide: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. …” US Const, Amend I.
2. See, e.g., Symposium, “Religion, Law and the Political Process Today,” 1 J Law & Relig 170 (1983)Google Scholar; and see books reviewed in this issue of the Journal.
3. None of the presidential contenders in 1988 expressed himself as articulately on this theme, however, as three Roman Catholic politicians did in September of 1984. See Kennedy, Edward M., Faith and Freedom, remarks before the Coalition on Conscience, New York, 10 09 1984Google Scholar; Cuomo, Mario, Religious Belief and Public Morality: A Catholic Governor's Response, University of Notre Dame, 13 09 1984Google Scholar, reprinted in 31 The New York Rev of Books 32–37 (10 25, 1984)Google Scholar; and Hyde, Henry J., Keeping God in the Closet: Some Thoughts on the Exorcism of Religious Values from Public Life, University of Notre Dame, 24 09 1984Google Scholar, reprinted in 1 Notre Dame J of Law, Ethics & Public Policy 33 (1984)Google Scholar.
4. Because the definition of “government official” was limited to federal office-holders, the survey did not include any members of the legislatures of the several States, any of the governors, or any sitting state judges. It is not clear whether those surveyed in this category included any members of Congress or sitting federal judges. Since those most directly concerned with the shaping of public policy that affects religious freedom were omitted from the survey, it is not nearly as informative as it would be if these officials were included. An additional survey should focus on these governmental leaders.
5. It is not clear whether those surveyed in this category included any professors of law. If those most directly concerned with the transmission of the views of the courts on matters of religious freedom were omitted from the survey, it is not nearly as informative as it would be if these professors were included. An additional survey should focus on these academics.
6. The survey did not seek any information relating to the Religious Tests provision of the Federal Constitution (cited in note 1).
7. Perhaps anticipating more dismal results if the respondents were asked about parallel provisions relating to religion in the state constitutions, the survey did not seek information about these provisions. The general public and leaders are probably even less familiar with these provisions than with the Religion Clause of the First Amendment. Nevertheless, the state constitutions safeguarded religious freedom before the existence of the federal constitution and should be the first rather than the last place to turn for protection against denigration of religious freedom by state action. See, e.g., Linde, Hans, First Things First: Rediscovering the States'Bills of Rights, 9 U Bait L Rev 379 (1980)Google Scholar.
8. Mooney, Christopher F., Public Virtue: Law and the Social Character of Religion 2 (Notre Dame, 1986)Google Scholar.
9. There are two exceptions to this observation: 62% think it proper for religious leaders “to try to close pornographic book stores”; and 61% think that “it's OK for Jewish groups to give money to politicians who support Israel.” Otherwise only 56% agree that “it's OK for the Right to Life movement to use religion in the debate on abortion”; 44% think that “it is proper for religious leaders to try to influence U.S. policy toward South Africa”; 24% agree that “it's OK for religious leaders to hide immigrants from Latin America when the U.S. government says those immigrants are illegal.”
10. Abortion Rights Mobilization, Inc v Regan, 544 F Supp 471 (SDNY 1982); Abortion Rights Mobilization, Inc v Regan, 552 F Supp 364 (SDNY 1982); Abortion Rights Mobilization, Inc v Regan, 603 F Supp 970 (SDNY 1985); Abortion Rights Mobilization, Inc v Baker, 110 FRD 337 (SDNY 1986); In re United States Catholic Conference, 824 F 2d 156 (2d Cir 1987), rev'd, United States Catholic Conference v Abortion Rights Mobilization, Inc, 108 S Ct 2268 (1988) (remanding for determination of standing of plaintiffs).
11. 885 F2d 1020 (2d Cir 1989).
12. Cert denied sub nom Abortion Rights Mobilization, Inc v United States Catholic Conference, 110 S Ct 1946 (1990).
13. 731 SW 2d 897 (Tenn 1987), app dismissed, 485 US 930 (1988).
14. To illustrate the wrongness of majoritarianism in constitutional matters, the surprising report from the survey that a plurality of 48% agree that churches should have to pay taxes on all their property (41% disagree) does not require the reversal of a centuries-old practice secured either in the state constitution or the statutes of every state in the union. To the contrary, the taxation of religious bodies would create difficulties of governmental interference with their rightful autonomy. See Walz v Tax Comm'n, 399 US 664 (1970); and Kelley, Dean M., Why Churches Should Not Pay Taxes (Harper & Row, 1977)Google Scholar. But see Jimmy Swaggart Ministries, Inc v California Bd of Equalization, 493 US —, 110 S Ct 688 (1990) (permitting imposition of sales and use tax on distribution of religious literature to members of church).
15. See, e.g., Mueller v Allen, 463 US 388, 403, n 11 (1983); and Lynch v Donnelly, 465 US 668, 684 (1984).
16. See, e.g., Aguilar v Felton, 473 US 402, 414 (1985); and see id at 416-17 (Powell concurring). I have urged the Court to abandon this test; see Gaffney, , Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St Louis L J 205 (1980)Google Scholar. The author of the test, Chief Justice Burger, appeared ready to rein it in, but not to abandon it. See, e.g., Lynch v Donnelly, 465 US 668 (1984).
17. A majority (62%) of the respondents did not identify any group as a threat to democracy. Groups so identified include: racists, KKK, Nazis (10%), evangelicals and fundamentalists (6%), cults and sects (6%), Communists (6%), “Moonies” (2%), Catholics (1%), and Jews (1%). In the eyes of academics, evangelicals and fundamentalists (34%) pose an even greater threat to democracy than racists, including the KKK and the Nazis (14%). Twice as many of the business leaders view evangelicals and fundamentalists as a threat than business leaders who are alarmed by racists. And twice as many of the media (12%) than the general population (6%) perceive evangelicals and fundamentalists as some kind of a threat to democracy.
18. The last remaining provision of this nature, a Tennessee prohibition on members of clergy serving in elective political office, was unanimously invalidated in McDaniel v Paty, 435 US 618 (1978). In a thoughtful concurring opinion, Justice Brennan wrote that religious bodies enjoy at least the same constitutional protection against deprivation of their rights of political speech and association as is enjoyed by their secular counterparts. 435 US, at 641 (Brennan concurring).