By Anthony J. Minna
Debate is legitimate between those who hold a rigid view of the need to keep religion out of the public sphere in the United States and those who favor the acceptance of certain patriotic invocations of God and other historical religious practices. But national and state governments in the last seventy-five or so years have created a number of new religious expressions and practices, often enacting legislation to make them a part of the public life of the country, thus mixing government and religion in ways that are fostering tension, discord, and conflict. Some of these developments have historical antecedents, but others are novel or broader in scope, and they are happening at a time when a growing number of Americans are unable or unwilling to accept them.
Beginning with President Franklin D. Roosevelt’s 1937 inauguration, presidential inaugural ceremonies have included invocations, benedictions, and other prayers as part of their programs. In 1952, a federal law was enacted requiring the president of the United States to proclaim a National Day of Prayer each year. The current, amended version of the federal law, which was ruled unconstitutional at the district court level in April 2010, declares: “The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” The Department of Justice appealed the district court ruling of unconstitutionality, and in April 2011 a three-judge panel of the United States Court of Appeals for the Seventh Circuit ruled in favor of the government, holding that the private citizen plaintiffs in the action lacked the necessary standing to challenge the law.1
In 1954 the words “under God” were added by Congress to the Pledge of Allegiance so that schoolchildren and others who render the pledge now swear allegiance to “one nation under God, indivisible, with liberty and justice for all.” A similar revision was made to the pledge of allegiance to the Texas state flag in 2007. In 1956 Congress declared “In God We Trust” to be the national motto of the United States. The phrase had appeared on some coins as early as the 1860s and on all coins from 1938 onward. In conformity with a 1955 law, paper currency began bearing the motto in 1957. The phrase has appeared on the state flag of Florida since 1868 and the state flag of Georgia since 2003, and it is an optional license plate slogan in several states. Florida officially made the phrase its state motto in 2006.
Practices such as displaying religious symbols in public, teaching creationism, and sponsoring religious observances in public schools have longer historical roots and large numbers of supporters who continue to promote them energetically. But these practices have equally determined opponents and, like the national motto, the National Day of Prayer, and the revision to the Pledge of Allegiance, they have been the subject of constitutional challenges in the nation’s courts. The number of these challenges has increased dramatically since the middle of the twentieth century. The United States Supreme Court alone has heard approximately twenty times as many First Amendment religious cases since 1940 as during the one hundred and fifty years between 1789 and 1939.
Each of these expressions and practices intermingles government and religion, some of them in mild ways that merely reflect the religious heritage of the majority of Americans, but some in pervasive ways that may not only violate freedom of conscience or the constitutional proscription against the establishment of religion, but could also have a detrimental effect on the unity and loyalty of the American people.
In the eyes of their supporters, state-sponsored references to the divine are an integral part of American history and culture that do not establish a state church, prefer one religion to another, or otherwise violate anyone’s rights. In the 1984 case of Lynch v. Donnelly, Justice William Brennan suggested that the phrase “In God We Trust” and the reference to God in the Pledge of Allegiance are best understood as examples of “ceremonial deism” that are “protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.” However, critics of these expressions claim that a specific religious belief now has the sanction of the federal government and several state governments, a legitimacy that is denied to systems of belief and ways of thinking that do not affirm the existence of God. They argue that the U.S. government has in effect stated that theistic religions are correct, at least insofar as their belief in God is concerned, and that therefore all contrary beliefs are wrong. This sanction constitutes an establishment of religion.
The arguments in support of ceremonial deism are more persuasive when applied to the national motto than when applied to the National Day of Prayer. The adoption of the words “In God We Trust” as the national motto and their inscription on the currency can be seen as solemn, nonsectarian acknowledgments of a divine authority that most Americans have historically accepted and continue to accept today. This argument does not satisfy everyone, and some opponents of the motto have taken to crossing it out on paper currency, but the establishment they perceive is a relatively mild one. The courts, for their part, have consistently upheld the constitutionality of the national motto.
The annual National Day of Prayer is more problematic, because praying to God cannot be understood as secularized or merely ceremonial or devoid of religious content. The federal law creating this day of observance requires the president to issue a proclamation designating a defined day each year when the American people can turn to God in prayer. This goes beyond the acknowledgment of a historical and ceremonial religious expression, which by its very nature is passive in character and requires no further positive act on the part of either government or citizen. Here, the federal executive is required by legislation to endorse a particular religious activity. The activity endorsed is not specified as Christian prayer, but churches are the only places of worship referred to in the law. Moreover, observance of the National Day of Prayer is not limited to traditional places of worship and private homes: prayer events are held at state capitols and in city halls and other government buildings.
The National Day of Prayer goes further toward establishment of religion than its historical antecedents. President John Adams, during the Quasi-War with France, proclaimed days of “solemn humiliation, fasting, and prayer” in both 1798 and 1799, and President Abraham Lincoln, during the Civil War, proclaimed a day of “national humiliation, fasting, and prayer” in 1863. Presidents Thomas Jefferson and Andrew Jackson, by contrast, refused to proclaim days of prayer, stating that the Constitution gave them no such authority. President James Madison proclaimed a day of public humiliation and prayer in the summer of 1812 following the commencement of war with Great Britain, but after leaving office he wrote that presidential proclamations of thanksgiving and fasts “imply a religious agency, making no part of the trust delegated to political rulers,” and that such proclamations “seem to imply and certainly nourish the erronious [sic] idea of a national religion.” The proclamations made by Presidents Adams, Madison, and Lincoln most certainly encouraged prayer, among other observances such as fasting and abstention from worldly pursuits, but they were one-time days of supplication to God in times of national emergency. The National Day of Prayer, on the other hand, is a permanent day of observance with no named or evident secular purpose.
Prayer might well be a wholesome form of private religious worship, but the promotion of overt religious practices is not a power allowed to public officials under the Constitution, nor, as a matter of prudent governance, is it one they should want to exercise. Both state and citizen are better served when assessments concerning the value of particular religious beliefs, practices, and forms of worship are left to private individuals, not to their governors. The promotion of certain religious activities, and the proscription of others, is what European governments did as a matter of course centuries ago, with conflict as the frequent result. But the 1952 law creating the National Day of Prayer is the only instance in American history where the federal government has enacted legislation endorsing a specified religious practice. That endorsement appears even stronger when prayer events are held at state capitols and other government buildings. Public officials, as individuals, have not always been, and are not mandated to be, neutral toward religion, but the religious neutrality of government itself is now in question. Holding White House prayer services on the National Day of Prayer and inviting members of religious organizations to speak at these services, as President George W. Bush did every year from 2001 to 2008, makes the government appear even less neutral. A presidential endorsement of the views held by the speakers and organizations will be implied by the invitation.
The developments since the mid-twentieth century were not motivated by a desire to exclude certain Americans from the enjoyment of their rights on religious grounds, and, for the most part, that has not been their effect; nor were they meant to establish the dominance of any single denomination. Indeed, the choice of religious speakers at presidential inaugurations has shown broad-mindedness on many occasions.2 Such an embrace of different faiths is by no means out of place in contemporary America, which, relative to the past, is quite tolerant. Moreover, no law or practice relating to religion today is as offensive to the ideals embodied in the Constitution as have been certain discriminatory laws and other government actions blighting the American political landscape at various times in history.3
The motivation behind the National Day of Prayer, the revision of the Pledge of Allegiance, and the adoption of the official motto was, at least in part, to establish a moral contrast during the Cold War between the officially godless Soviet Union and the God-worshiping United States. And the promotion of faith-based initiatives, school prayer, and the teaching of creationism do not only reflect the belief of their promoters that religion should have a prominent place in American society and in the daily lives of the American people; they often have a patriotic component. In calling for a National Day of Prayer in 1952, the Christian evangelist Billy Graham stated that if the country sailed on without Jesus, “the end of the course is national shipwreck and ruin.” But even if the motivations were arguably benign, the potential consequences in modern America need to be fully understood.
Religious life in the United States is incredibly dynamic. The 2009 report by the Pew Forum on Religion and Public Life, “Faith in Flux: Changes in Religious Affiliation in the U.S.,” estimates that between 47 and 59 percent of American adults have switched their religious affiliation at least once. Many have switched it multiple times. The number of Americans identifying themselves as Muslims or Buddhists or Hindus, while still relatively small, nearly tripled in the same period. The number of Wiccans is also small but has multiplied at least as dramatically in recent years. At the time of the American Revolution, Catholics were a small minority, at most 1.8 percent of the overall population. Today, Catholicism is the single largest Christian denomination in the country as a whole, as well as in thirty-three of the fifty states. Moreover, according to data released by the Pew Forum in October 2012, the number of Americans who do not identify with any religion (the “nones”) continues to grow at a rapid pace, increasing from just over 15 percent to just under 20 percent in the last five years alone; one-fifth of the U.S. public (and a third of adults under thirty) are religiously unaffiliated today.4 Immigration, conversion to a different faith, the appearance and growth of new faiths, and the abandonment of previous affiliations continually change the religious map of the United States. No one knows what the religious composition of the American populace will be one hundred years from now, but it is certain that there will be many numerically significant minorities.
This changing religious landscape will bring conflict with it if the state sanctioning of religious beliefs and activities is a favor the government is willing to grant. European and American history teaches us as much. Where the prerogatives of the state have included the ability to bestow privileges on one or more religions, adherents of different faiths have fought for control, and for the means of advancing their beliefs. For example, the Philadelphia Bible Riots of 1844 showed how a state-sponsored religious practice that appeared innocuous and enjoyed widespread support could quickly became a source of bitter animosity in a country as religiously diverse and dynamic as the United States.5 The riots polarized public opinion nationwide and were an issue in the presidential election of 1844. For a generation, relations between Protestants and Catholics remained strained in Philadelphia, the “City of Brotherly Love,” which a century earlier had been one of the most religiously tolerant places in the Western world. With this history in mind, proponents of such state-sponsored practices as religious instruction and prayer in public schools might want to consider the potential for conflict around what kind of religious instruction and what kind of prayer is to be offered, given our twenty-first-century classrooms, where children identify as Buddhist, Hindu, Christian, Jewish, Muslim, atheist, and in a myriad of other ways.
Discord among Americans, by no means lacking today, will become much worse if confessional differences divide Americans in new (or renewed) and harmful ways. In ruling that the statute creating the National Day of Prayer is unconstitutional, United States District Judge Barbara Crabb, in her sixty-six-page opinion, listed no fewer than fifteen examples of conflicts and controversies among different religious groups that occurred between 2003 and 2008 in connection with participation at National Day of Prayer events. Several of the examples cited involved fights over the exclusion of certain religious groups from events at state capitols and municipal buildings. Another example involved “dueling prayer services” at the city council building in Plano, Texas, in 2008.
The accommodation of religious pluralism in the private sphere has been one of the greatest accomplishments of the United States of America. But, should the public sphere become a place for Americans of different faiths to compete with each other in proclaiming the supremacy of their beliefs, or in seeking official recognition of those beliefs, religious tension will follow. One of the Founding Fathers’ greatest gifts to the nascent American republic was their embrace of religious liberty and their insistence on state neutrality in matters of religion. The changing religious landscape in the United States is not and never has been a reason to abandon this approach. On the contrary, the diversity of faiths in America has always been and remains one of the strongest arguments for adhering to the constitutional formula that has served the nation so well.
- The plaintiffs have announced they will seek a review by the full panel of the Court of Appeals for the Seventh Circuit.
- At Dwight D. Eisenhower’s 1957 inauguration, for example, the invocation was given by a Presbyterian minister, the benediction by a Catholic cardinal, and prayers were offered by a Greek Orthodox archbishop and a Jewish rabbi.
- To cite just one example, General Ulysses S. Grant signed an order during the Civil War for the expulsion of all Jews from areas of Kentucky, Tennessee, and Mississippi. The forced evacuation was carried out in three communities before President Lincoln demanded that Grant revoke the order.
- According to the study, the ranks of the unaffiliated “now include more than 13 million self-described atheists and agnostics (nearly 6% of U.S. adults), as well as nearly 33 million people who say they have no particular religious affiliation (14%).” The full report is at www.pewforum.org/Unaffiliated/nones-on-the-rise.aspx. The number of unaffiliated had already increased in the previous twenty years: in the 2009 American Religious Identification Survey, the percentage of the population reporting no religious affiliation rose to 15%, up from 8.2% in 1990.
- The spark that ignited the conflict was a difference between Protestants and Catholics over whose version of the Bible schoolchildren were to read from. Both sides were willing to fight for their cause and violence ensued, with more than two dozen people killed and at least a hundred more injured.
Anthony J. Minna holds law degrees from the University of Brussels and the University of Toronto Law School and is a member of the New York State Bar and the Ontario Bar.